Is John Adams Still Laughing? How SCOTUS Upholds the Constitutional Exclusion of Women

Interview with Pam O'Shaughnessy about her upcoming series analyzing the "suite of tactics" SCOTUS is deploying to plug the few holes in the Constitution that might include women as a class.

In the new Code of Laws which I suppose it will be necessary for you to make, I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors… Do not put such unlimited power into the hands of the husbands… [else] we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation. ~Abigail Adams, March 31, 1776

Your Letter was the first Intimation that another Tribe more numerous and powerfull than all the rest were grown discontented…. As to your extraordinary code of laws, I cannot but laugh… We know better than to repeal our Masculine systems. ~John Adams, April 14, 1776

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Those of us who know our women’s history recall that Abigail Adams famously implored her husband John, during the formation of the new United States government, to create a legal system fairer to women than that of their forebears. Of course, he did not take her seriously, and until the 19th amendment, which gave women the right to vote, women were effectively excluded from the Constitution. In this interview, feminist lawyer Pam O’Shaughnessy explains the history of our exclusion and previews her upcoming series of articles analyzing how the Supreme Court continues to subvert full citizenship rights for women.

O’Shaughnessy is a former Civil Rights Investigator for the federal government. After graduating from Harvard Law School, she became the Affirmative Action Director for UMass Boston as well as for Hartnell College in California. She went on to practice law in California, handling criminal law and appeals as well as civil litigation for a number of years, including representing clients with complaints of discrimination against the Army’s Defense Language Institute. Pam and her sister Mary then embarked on a new career, writing a best-selling series of thirteen legal thrillers under the name Perri O’Shaughnessy, about a Lake Tahoe attorney who faces sexism as well as handling murder cases.

In her upcoming series of articles, O’Shaughnessy will examine a dozen Supreme Court cases to expose how the Court deploys a “suite of tactics,” both doctrinal and procedural, that continue to unfairly and arbitrarily keep women out of the Constitution.

Below is a lightly edited transcript of a conversation Pam and I had last week to discuss her forthcoming work on her soon-to-be-launched substack, Woman Law.

Katherine: I'm so excited to talk with you, Pam, not only to introduce the series, but also because I always learn so much from you talking about the law. I'm curious about what inspired you to become a lawyer. There weren't many women going to Harvard Law School at the time you attended, were there?

Pam O'Shaughnessy: 13.6%. One woman for every seven men. Lots of short guys rushing back and forth in the tunnels under the law school. How will I ever forget?

I always said that there was not a critical mass there. But as to how I got into law, I didn't know any lawyers growing up, or anything about lawyers. But I had the extreme luck of getting a job right out of college with the Office for Civil Rights in the federal government, and did that work for three years before I went to law school. During that time I met some actual female lawyers. They were very rare birds, it seemed to me, that would drop into our meetings and drape themselves over the chair and not say anything and make tons of money; much more than I was making.

So it struck me that all I would have to do in law school would be to read a lot of books and that I would just see what happened. I applied to Harvard and was accepted. By then, I felt like I had really learned a lot in my job and I was beginning to develop a burning interest in affirmative action and especially employment discrimination, which was what I was working on.

Katherine: I was going to ask how your feminist consciousness developed. It sounds like maybe it started with working on employment civil rights cases.

Pam: Absolutely. I remember when I came out of college, I really didn't have much of a feminist consciousness, but that rapidly changed.

I was still at a very pragmatic level when I was working for the Office for Civil Rights. We received orders to go out and integrate women into higher education and hospital administration. That was my beat. We were just told to go out and do it. It was a wonderful period for investigating sex discrimination because Bernice Sandler had filed her WEAL complaints against higher education for sex discrimination in universities.

Katherine: Can you tell me what WEAL stands for?

Pam: Women's Equity Action League. It was one of the groups that worked with NOW, a liberal feminist group that was formed in the early 70s. The Civil Rights Act was passed in 1964. and early on was intended and given federal funds mostly to work on the race problem in the United States, especially in employment and education.

Title IX, which you mentioned, covered sex discrimination in education in particular, as did the whole Civil Rights Act, sort of by accident. The part that covered sex didn't get any attention for a number of years until Bernice Sandler, a real pioneer and a really smart lady.

I understand she filed hundreds of complaints against colleges and universities. That was how the Office for Civil Rights went from being an agency that only investigated racial discrimination to one that suddenly started looking at women's status.

Katherine: My friend Kathleen Kelly talks about this in the first interview I did with her about Title IX; about the number of cases Bernice Sandler had filed. She said she filed many of them because she knew that those women knew they would be fired from their jobs if they tried to file it on their own. And so she helped many, many women, it sounds like.

Pam: She was absolutely right that women should fear losing their university jobs. They were stuck in the adjunct, temporary, or assistant professor non-tenured positions with no job security. I had the opportunity to talk to quite a few male faculty during that time who were very jealous of their prerogative to sit in private little all-male faculty meetings deciding who was going to get tenure.

It was always something about the woman. She just didn't fit in. That was really how these decisions were being made. So Sandler was right about that and did the right thing.

Katherine: Well, why don't we dive into our topic of the day here? I want to start with this business of the public and private spheres. You argue that a paradigm that shapes the exclusion of women from the Constitution is this idea of public and private spheres of human life.

That goes back to the ancient Greeks, where the public sphere is characterized by rationality, the free exchange of ideas and debate, and is the cornerstone of democratic government. And the private sphere is the home, the realm of emotions, and occupied by supposed non-rational beings like women, children, slaves, and servants.

So can you elaborate on this business of the public and private spheres? And what's important for us to understand about this in relation to women in the Constitution?

Pam: I would love to and you'll have to stop me. I really have so much to say and think about this topic. To start with the history, which is where we need to start. About a thousand years ago, when the Normans invaded England, they brought with them something called the law of coverture.

Coverture was a harshly patriarchal legal system, as it's been described by some historians, which erased married women from having independent legal status from their husbands. How harsh it was is almost impossible for us to believe today. Unmarried women were also subject to heavy restrictions. Not only did women have few legal rights, but they were discouraged from even speaking in the public sphere.

In the nineteenth century this system was supported by an ideology applied to middle and upper-class women, called True Womanhood or the Cult of Domesticity. A virtuous woman had four main social traits: first and foremost, she was pious. Second, she was “pure”, and you know what that means. Third, she was “domestic”, meaning she did not venture from the private sphere, and last, she was submissive.

This harsh patriarchal ideology passed from England to its colonies. By about 1650, all of the colonies had adopted the law of coverture. Women were subjected to this ancient system of common law not applied to men. Believe it or not, one of my arguments is that it is still residually affecting women in this country today. So the law of coverture placed women into a separate sphere, not only a social but also a legal sphere, from men.

Katherine: So, to explain a little further. Coverture has to do with married women basically, right? What they call the civil death of married women; that the two were one and that one was the man.

So coverture was, he ruled everything. He owned her and her wages; any property that came into the marriage. She had no legal standing or rights whatsoever. Is that correct?

Pam: Yes. And startlingly, it was still very much in effect in 1820, 1840, 1870. It wasn't that long ago that it was simply the conventional understanding about women’s role.

After the American Revolution happened and we were freed from England, the elite men property owners in the new independent country got together to decide on a new governmental structure, and went to a constitutional convention. At that point, a question arose: who to include as citizens of the new state.

I want to say very clearly here that religion is one of the hidden aspects of the ongoing discrimination against women today that gets glossed over because it makes people uncomfortable. Nevertheless, it is a very, very important factor in women’s current not good status today.

So the Fathers of the Constitution wanted a secular state. There had been too many religious wars in England right before they came over. But religion had to go somewhere. It still affected everyone. Everyone was religious. So when the establishment of a state religion was forbidden in the new Constitution, religious authority became relegated to the private sphere of women and slaves and children, while the men ensured they would have their own secular state.

The theory was that “free” men were making a “social contract” with each other whereby they would give up some rights for the collective good, and a constitution would become the basic law of their government. They would retain all their fundamental rights of freedom and equality apart from that constitution. The federal government only had the powers they granted to it, and they reserved all other powers for themselves and the individual states.

So the secular state that they formed had two sides to it. One was the fundamental rights of the men. And the other was the powers of the federal government for the collective of the men. This set up a conceptual line, which was quite sharp at times, between that new secular constitutional government governing the public sphere, and the private sphere where women and religion were left.

The two sides of this line have come to be known as many concepts. Sometimes they are called a private sphere and a public square. Sometimes it's the agora, the marketplace, versus the private sphere. Sometimes the two sides remind me very much of the idea of the separation of church and state. I think there's a close connection there.

It's called many things, but it's a basic division in our society and laws in which women and slaves, also including women, were excluded from the new constitution. It was never intended that they would be included. They were never given any opportunity to contribute to its formation. You might say women were left dependent on three other rulers, the common law of coverture, religious authority, and their male guardians.

Katherine: It occurs to me that these men wanted to create, in the public sphere, a more egalitarian society for people like themselves. At that time, propertied white men. They didn't want a monarchy.

They wanted some kind of egalitarian system. But they wanted to retain a sort of monarchy in the private sphere where they're like kings or lords of their home.

Another piece of this is the intellectual traditions from the Greeks and from the Enlightenment era. I remember Rousseau had this idea of the “disorder of women;” that women were not as rational as men, and you need rationality to develop a sense of justice, and you need that sense of justice to have a legal structure and a society where we can have the rule of law. And so if you bring women into the public sphere, you're bringing disorder. You're going to undermine the whole thing.

Pam: Yes. You can hear the echoes of that in some of the conversations that John Adams had with Sullivan and other men before the Constitutional Convention. You can feel Adams's anxiety over the concept of bringing in not only women, but all hoi polloi of society.

Yes, Adams on the one hand was an outright supporter of equality for those covered in the new Constitution. But on the other hand, he was hierarchical in his thinking about the private sphere. The public had equality, but the private was to remain a hierarchy. Religion was on top. God was the ruler. Next most of the time came the male head of the household, followed by the wife, followed by any slaves and children. And, again, the slaves included women who were sometimes wives, sometimes not. It was feudal.

So – what a difference in the two social and legal systems that were coexisting.

Katherine: Right. And they were so contradictory. That could never last.

Pam: I think it still lasts today.

Katherine: What I mean is, the intellectual justification for it. If women in the private sphere are seeing what men are getting in the public sphere, and hearing all of this egalitarian rhetoric, they're going to want some of that, too. The separate spheres can't coexist.

You keep bringing up religion, and that makes me think about the Christian nationalism that is coming to power right now in the U.S. And a big piece of that is wanting to put women back in their place.

But I want to move us along a little bit. What I want to say is that, although the framers of the Constitution drew on Enlightenment traditions, on Greek traditions, and so on and so forth, they also drew inspiration from the Haudenosaunee confederacy. Because they were trying to figure out how they could have 13 colonies that could have some degree of independence, and govern their own internal affairs, but also be part of a larger collective government.

And so they drew on the constitution of the Haudenosaunee Confederacy, the Great Law of Peace, that had been created by the five nations later, the six nations of the Iroquois. They used to be called the Iroquois, but that was what the French named them. But they call themselves Haudenosaunee. They had a very complex system of government.

And there's so much evidence that they were drawing on this. Benjamin Franklin, in particular, was a great admirer of the Haudenosaunee and the way they governed their nation. And In 1987, the Senate finally recognized this and read a resolution in the Senate that noted that the original framers of the Constitution were influenced by the Haudenosaunee.

Now, here's the interesting part. They took that piece of it, but Haudenosaunee women had political and economic power in their society. So Haudenosaunee clan mothers nominated the chiefs. They could remove a bad chief with three warnings. They had economic power because collectively women farmed the land and they controlled food distribution. They owned the longhouses. It was a matrilineal society. So if a woman wanted a divorce, she just put the guy's things outside the door and he had to go back to his mom's longhouse.

So the interesting thing to me is they had before them a more egalitarian model of male and female relations, of political and economic participation - and they consciously chose not to use it. Historian Sally Roesche Wagner says that when Abigail Adams told her husband, John Adams, not to forget the ladies, to “be more generous and favorable to women than your ancestors. Do not put such unlimited power in the hands of husbands, or we are determined to foment a rebellion” - she was fearful that, even though they were drawing on the Haudenosaunee to develop a federal system of government, that they were going to use English common law when it came to women and family life.

Pam: That's all very, very interesting. It is very true that they examined all those many different kinds of governments and constitutions and looked at the Iroquois, as you say. They lived so close, and there was such personal knowledge of a more sex-egalitarian system, you would have expected them to be perhaps a little more open-minded about the situation that they were leaving women in. However, they ignored it completely. Partly we can explain it as the fact that their intellectual roots did not go in the direction of indigenous people, but went back to the ancient Greeks as you said. There was a long unbroken patriarchal tradition that they were following in keeping with Western civilization generally. Unfortunately.

Katherine: Right, because that public-private paradigm sort of morphs and adapts to the time period, doesn't it? It's very old, but it adapts to whatever historical time period.

Pam: Now, even knowing these things about women’s inferior status back in 1787 when the Constitution was being debated at the convention, we do know that Abigail was saying these things, wrote these things to her husband, And his response, we also know, was, I cannot but laugh.

That was his response. And he had a few other words to say about it. Next, you'll be trying to get the slaves to vote, he said. He said, even though you're being very saucy to me, I'm going to let your comments stand. And then later, he seemed to want to soften his statement a little bit, because he loved her very much. And he said something like, of course, you know, us males would never give up such prerogatives, but you know it's really all just a theory. So that was his comment.

What I find most telling about Abigail Adams’s request to Remember the Ladies is that, looking through the history of women's participation in the convention, I only find her comment recorded in history. And that lets you know how silenced women were. She happened to be able to read and write. She happened to not be a slave or free but poor. She happened to have read books in her father's library. She happened to have a sympathetic husband who was powerful. And this was the best she could do, write him a letter imploring him to consider the women. And she was laughed at by her husband. That's all that we have in the history books about women's protests because they were silenced socially and legally.

And that was the worst thing about the law of coverture – the silence of women.

Katherine: Right. Because you know she's not the only woman who thought that way, I'm sure.

Pam: Of course.

Katherine: So let's move on to how exactly in practical terms does this operate, this public-private thing with the Constitution, with the law?

Pam: Well, there's a lot of interpenetrability between the public and the private spheres. As time goes on, various waves of incursions back and forth happen so that the secular government of the Constitution sometimes interferes with the private sphere, as it has done in the Dobbs anti-abortion case, with the powerful encouragement of religion.

Religion has not only been an authority in the private sphere, but it does have one special protection in the Constitution – people are free to practice their religions in the public sphere. This causes an ongoing tension with the secular prohibition in that Amendment preventing the government from actively supporting religion. So religion has gone quite a bit back and forth.

And one of the greatest series of waves, as we know, of the last two hundred years has been women's attempts to move into the public sphere and have both spheres at their disposal as men do, as well as getting rid of the hierarchy in the private sphere.

Katherine: Okay, so one thing I want to kind of clarify with you, Pam, about this public and private thing. This is like a paradigm for organizing society, or how would you describe it?

Pam: Well, let me quote from Danaya Wright, who is a professor of law at the University of Florida, who wrote a wonderful article that really inspired me about public and private history. She said that it is “a metaphor, but it's also an organizing constraint. It’s a real constraint on modern society with material consequences, as well as a rhetorical device used by historians and sociologists for analyzing men's and women's activities in the 19th and 20th century. As you say, the defining aspect is that women act in and are influenced by the values of a domestic space focused on the needs of family, while men act in a public space focused on the needs of civil society. So that division has material effects, but it's originally a method of analysis.

There are real legal consequences. It's a legal reality because the basic law of the secular state, the Constitution, erects this division.

In 2011, Antonin Scalia, the Supreme Court justice, made a little speech to a sympathetic group. He said, women are not covered by the 14th Amendment, which includes the Equal Protection right. That caused kind of a furor, because many, maybe most people, thought women did have equal rights in 2011. For almost fifty years we'd had a more liberal Supreme Court that had wanted to try to expand the Constitution to let women creep in through a few cracks that still existed in it. And one of the very biggest ways that they could creep in was through the Equal Protection Clause.

Scalia was right, though. Women had no rights under the 14th Amendment. It wasn't intended for them. It wasn't enacted for them. It was to help people who were still suffering from slavery.

Katherine: That takes us into our next section where you were going to talk about these different ways that women have tried to get constitutional rights through the Fifth and the Fourteenth Amendments. And this idea that, in a more progressive eras, when we have more progressive justices, they go digging around and try to find us some rights somewhere in the Constitution.

But in more reactionary times, like we're in now, when there are more originalists on the Court, they are going to look at the Constitution and say, no, we're just going to go by what was originally in there.

I mean, technically, like you said with Scalia, they're right that women aren't in there. And so anything that we gain, it seems to me, is very vulnerable. It's very fragile because it's based on somebody's goodwill at the moment.

Pam: Absolutely. That is how those cracks in the Constitution have been identified and used. Women have relied on the sympathies of Supreme Court justices, whether they're liberal and sympathetic, or whether they happen to be Catholic conservatives, who are the opposite of that.

One of the difficulties that arises when you're trying to talk about what has happened over the past 200 years with the Constitution and women is that it's very hard to figure out how to approach the subject. The way I have planned to approach this is to write about the epic moments when the opportunity came up, in Supreme Court cases or in other ways, to make the huge change of inviting all women citizens into the secular state through the Constitution.

There have been a number of those epic moments. Quite often they were precipitated by women filing lawsuits. So I've made a selection of about a dozen cases that I intend to talk about, showing moments when the Supreme Court could have said, okay, we're going to bring you fully in. It's way past time. The justices not only failed to do it, they deliberately looked for unjust ways not to do it because they did not want that result. And that is why we sit where we sit today with regard to abortion.

Katherine: Well, let's back up a little bit. We did get something with the 19th Amendment. And then if you could talk a little bit about the 5th and the 14th, what kind of rights have they found for women in the 5th and the 14th that are now maybe under threat with some of the cases that you're going to look at?

Pam: Well, I'm not going to talk much about the 19th Amendment, just very quickly. Over a period of 100 years of women fighting like hell, we forced the 19th Amendment into the Constitution and got the right to vote. And we have experienced some of the same problems that African-American people, including of course women, have experienced with that when they try to vote and have restrictions put on their voting. But women as a class have been more or less accepted as voters.

So we have the 19th Amendment. It's sitting there in the Constitution. We have the right to vote. Do we have any other rights? Do we have any fundamental right to equal employment? No fundamental right. We have a statutory right under the Civil Rights Act that disappears if anybody decides to rescind it, any Congress. So what other rights do women as a class have besides the right to vote in the secular state?

And I want to show that the answer is almost nothing when you get done with Supreme Court doctrines and procedures that are tricky tactics to keep from interpreting the Constitution in a way that brings us in.

Katherine: So what kind of ways were we, however temporarily, brought in with the 14th Amendment?

Pam: Right, a crack was opened in the Equal Protection Clause. The case of Reed v. Reed in 1971 took a facially discriminatory statute where a state said a man would be preferred when there was a conflict between a man and a woman who otherwise had equal rights to handle the administration of the estate of a deceased person.

It sounds complicated, but it was very clear that women were being judged less competent than men to handle their sons' estates. And in that case, the Supreme Court said the Equal Protection Clause applied, to everyone's amazement. We had finally broken through, and it had finally been applied to women. So that was considered a great victory. We thought the favorable ruling would be applied to open the crack further.

But Reed v. Reed was followed in 1976 by another case, the Frontiero case, which also involved a facially discriminatory law or regulation. The time was absolutely there for the Court to declare that a facially discriminatory law was not only void under the 14th Amendment, but that women were what’s called a “suspect class” entitled to receive the highest level of scrutiny during judicial review. But the crucial fifth justice who could have signed the majority opinion declined to do that and issued his own separate concurring opinion. There was no majority. That stopped that.

Katherine: Can you explain about “suspect classes”?

Pam: Yes, that's where you get into a set of tricky tactics by the Supreme Court. Among civil rights cases, there has developed a hierarchy involving the different classes of people with special legal protection.

We all know that there is a religious right to protection from discrimination caused by state action. There's also a race-based right, if you want to phrase it that way, to protection. The Civil Rights Act has provided women a right to be equally protected as a class, and the precedent of Reed v Reed protects us if the state action is openly and obviously discriminatory. There are other groups that don't get any protection at all or very little to no protection that are out of the whole schema, like poor people.

In the Federalist Papers, during the time the Constitution was being debated, James Madison said, “In a free government the security for civil rights must be the same as that for religious rights.” But I want to show that religious rights have lately outweighed all other civil rights.

The justices don’t look as hard at some disputed state laws, depending on what protected class is affected. They scrutinize the case based on a hierarchy of standards. Three levels of judicial standards of scrutiny have evolved that have been entirely made up by the Court.

At the very highest level of strict scrutiny, they have put religion. Below that is race, which also receives a strict level of scrutiny. But in a direct conflict between religion and race, religion is going to prevail. Below that is women, which I’ll get to. And below that is almost everything else that gets enacted. Those lower classes of people being discriminated against barely receive any judicial scrutiny. The only standard is, well, did the state action in the case have any rational basis at all? Unless it's something that's really nutty, they will uphold the disputed state action.

So what about sex discrimination? Here was another epic moment when women’s right to constitutional equal protection could have been officially included as equal to religion and race.

Katherine: You sent me an article, a long time ago, for something else I was writing, where they discussed this. The thing that really stayed with me is that they invented intermediate scrutiny when cases of sex discrimination first started coming to the Court. That they didn't want to let us have strict scrutiny, as for race and religion. Of course, it had to be a little higher than the rational basis standard. So they invented something almost entirely just for sex discrimination cases, which they called intermediate scrutiny.

Pam: That's right. It was invented by the justices in the case of Craig v. Boren in 1976, after the Frontiero court did not move forward and develop a majority decision that women were a suspect class entitled to strict scrutiny. In Craig v Boren, the justices said, well, I think we're going to have to do a little something here for women. The state has to have a little better rationale than plausible excuses for causing this discrimination, but we don't want to give women too high a level. No way are we going to call them a suspect class, they’ll have too much legal ammo from that. But how do we get around them?

So they said, well, let’s invent a lower category and call them a quasi-suspect-class! Yeah, that’s the ticket! And we'll call this quasi-standard for quasi-people “intermediate scrutiny.” So here's a case where the Court made up a lower level of scrutiny for women than, say, for African-American men, out of thin air. It's a tactic the Supreme Court used to keep women from having full and equal rights in a secular state. I've identified quite a few examples of tactics for keeping women second-class citizens as I go through the cases that I would like to talk about. I can't wait, really.

Katherine: So really, the 19th Amendment is probably almost the only place where women explicitly have rights?

Pam: No, there was one other place where sympathetic jurists in the 60s and 70s tried to find a crack for women, or I would say the women looked for the crack. And the justices for that short period were willing to support them. And that was in the Fifth Amendment of the Bill of Rights, which says that everyone's entitled to due process.

Well, the court broadened that idea of due process to say you can't have liberty without substantive due process. That doctrine held up for many years. It means that rights that are protected by the due process requirement are fundamental rights, even if the Constitution doesn’t list them expressly. That means no law can be passed that takes them away once they are identified.

So in the early 1970s, there was another line of cases separate from the Equal Protection Clause in which the Supreme Court became willing to look for a fundamental right of women under the Fifth Amendment. It seemed another crack in the Constitution might be there.

The Court did find that a fundamental right to privacy, previously located in the Fifth Amendment, applied to abortion in the 1973 case of Roe v. Wade. That was how a right to abortion got into the Constitution, through a rather shaky interpretation of the Fifth Amendment.

So now, in the 1970s, we had an epic moment. We had a Fifth Amendment substantive due process right to privacy. Feminists consider Roe v. Wade to be one of the great triumphs of the 20th century for women.

So we had a crack in the Fifth Amendment and we had a start on the 14th Amendment, the Equal Protection Clause. But you know what? There really wasn't anywhere else to look. There wasn't any other place to insert women.

Some people have said, how come slavery was abolished, but women can’t have our own Amendment acknowledging that sex discrimination is unconstitutional? Why have we struggled for over a century now to get that with the Equal Rights Amendment? What’s the resistance?

Some legal scholars say that at least slaves were referred to in the original Constitution, even though they only constituted three-fifths of a human in counting for the census. At least the concept of “slavery” was there. And a proposed Amendment could revise and expand on words that were already in the Constitution. But since women were utterly shut out of it, since we had no presence in the Constitution other than some movement in the cracks which might turn out to be temporary, and since, let’s face it, there are a hundred seventy million of us in all our diversity, a whole new side wing would have to be built off the edifice of the Constitution. It would be harder in some ways than abolishing slavery.

But I don’t buy that. I think abolishing slavery was of course extremely hard, with many thousands of lives lost. Getting women into the Constitution is also very hard, because the basic division in society we started this interview talking about still has great force in today’s society. Sure, women can move from the silence and subservience of the private sphere into the public sphere now, but women are saying, we also have to change the public sphere now, we didn’t go through all this to add our home job to a second job at the drone factory. And by the way, we won’t work for anything but equal pay. It’s very threatening to the powerful public sphere interests of capitalism, because society will need to be reorganized, ultimately.

Katherine: You know, there's a whole debate now about the ERA. First of all, do you think Biden should have published it? Do you think he should have directed the archivist to publish it?

Pam: Absolutely. But he didn’t. He gave women a sympathetic press release that had no force of law. Another epic lost opportunity passed. Time ran out.

The reason he should have published it is because it would have triggered a lawsuit that kept the ERA alive, not because he would have settled the issue that way. It would have gone to the Supreme Court. And the Supreme Court at that point probably would say, I wouldn't be a bit surprised, that our side loses. I think we would lose the case.

At that point, I think that we would have a perfect epic moment where the justices would be seen to turn their backs on women, and it couldn’t be hidden or glossed over. I would compare a decision like that to something like the Dred Scott case or Plessy v. Ferguson or the Korematsu case that permitted internship of Japanese Americans. It would become historically infamous.

Katherine: Well, it would be so blatant and obvious, even to people who don't understand the law, right?

Pam: I believe so. Looking at the arguments for bringing in the ERA, they're very substantive. They're very strong. If the Supreme Court ever has to consider whether it’s ratified on the merits and goes against those arguments, I believe it would be very apparent that the real problem is a prejudice against bringing women fully into the public sphere and stopping their abuse by men in the private sphere.

Katherine: You mentioned before that the founders did not want to have a state religion, but that religion undergirded all the assumptions and rules about the private sphere. It occurs to me that a lot of that has been undermined by feminism.

And, if we listen to the talk of the incoming administration, many of the people in it, with Project 2025, they're bringing religion right back in and it's going to be in the public and the private spheres.

Pam: You can see the shadow of the law of coverture all through that Project 2025 document.

Look at women’s situation as a series of waves starting with the law of coverture, so terrible that women react and react and fight and fight and finally get the 19th amendment – then in the 1960s and 70s they get a progressive Court that starts bringing them over from the private sphere into the public sphere. Then a backlash or rollback or a reaction of conservative justices occurs, attempting to push us back into the private sphere.

You can also look at religion. Religion was pushed into the private sphere also after the Constitutional Convention to a very great extent. But at least it had its sphere. It had its rulership, and it had its constituents, the women. So if the women move into the public sphere, who could the institutions of religion rule? There won't be much of a private sphere with a bunch of restrictions anymore. It'll all be made more public. Male violence will finally be brought in to public law as sex discrimination. Family law will be brought in as sex discrimination. All those issues will suddenly become sex discrimination instead of being, oh, a little criminal law here, a little thing that everybody hides over there and so forth. Abortion won’t be a privacy right, it’ll be a civil right again under the Constitution.

So religion is pushing to get back into the public sphere now. And there is some evidence that there's another reason why the Christian Right is very, very concerned, not only with regard to abortion, but because of clergy sexual abuse cases that will be coming before the Court. This might be one reason why we have found ourselves with a court majority who are all conservative Catholics.

Katherine: There are Supreme Court cases coming up over clergy sex abuse?

Pam: There are reports that hundreds of millions of dollars have been spent in various ways to suppress the claims, to settle the court cases, to prevent them from coming to the Supreme Court. And religious interests also have other very strong motivations to stack the court. It is really astounding considering the diversity of our country in terms of religion and non-religion. This is an absolutely unstoppable group. The idea that a conservative Catholic justice can rule based on completely neutral principles doesn't make much sense if you look at Catholic principles. They say, if I have this right, that unless you adhere to all the principles of the Catholic Church, including no abortion ever, you’re not a Catholic.

Katherine: Not only that, they were selected specifically for their ideology because they came off a short list from Leonard Leo, himself a conservative Catholic. He's the one who was largely involved with drawing up that list for Trump to appoint in his first administration. There's a whole liberal tradition in Catholicism, liberation theology, and Catholics more than Protestants have been supporters of union rights and things like that. But that's not what he drew from. And so it was intentional. They intentionally put right wing ideologues on the court.

Pam: Right. This is a much bigger campaign than drawing up lists and trying to get the President to sign off based on the list. It's big, big money. And it's dark money, thanks to the Christian Right and the capitalist right, working together to get cases like the Citizens United case passed.

Katherine: The pluto-theocracy, Ann Nelson calls it. I love her term pluto-theocracy because it fits so well with big money and religion.

Okay, so, in our earlier conversations, Pam, you were talking about sort of a “suite of tactics,” I think was your term, for what the Court has been doing to reach predetermined conclusions that continue to try and exclude women from the Constitution. “Plugging holes,” you said. Can you elaborate on that?

Pam: Sure. I've talked a lot during this interview so far about some preliminary considerations as to how I feel I can make a contribution to the current situation. We've talked about why the court acts the way it does or comes up with the conclusions it comes to and how we've come to this moment in legal history. But I think I can also show that at certain moments and in certain cases in the Supreme Court, specific methodologies and doctrines have been developed to keep women out, even to this day and into the future.

There are several sets of tactics. The doctrinal tactics that I've identified are quite a lot more interesting, I think. But there are great stories about procedural things that happen too. I am really looking forward to writing about Kathryn Kolbert, a lawyer who represented Planned Parenthood with the ACLU, in the 1992 case of Planned Parenthood v. Casey. She refused to be involved in court tactics and went straight for the truth of the case.

She knew from the start that her opponents felt pretty confident Roe v Wade was about to be overruled. She knew the Court wanted to avoid ruling on the case until after the next set of elections to avoid negative voting fallout. She also knew that the Court would not want overruling Roe v Wade directly to be sharply discussed in oral argument. The Court wanted a gentlemanly discussion about abortion restrictions, not a direct confrontation.

So Kolbert made a request for the court to hear her case on a very tight timeline which would result in a decision before the next elections. And in the Questions Presented section of her request, she didn’t mince her words. She asked flatly that the Court rule on whether Roe v Wade was going to be overturned.

Chief Justice Rehnquist was insulted, according to the reports I’ve read, first of all at her speed in filing her papers. So he chose a tactic that you can choose if you're the Chief Justice, which is called “relisting the case”. The justices meet once a month to discuss cases, and Rehnquist had the case relisted month after month after month so that the case would not come up until after the election anyway. Finally, there was an internal court revolution among more sympathetic justices, and Kolbert managed to get the case heard at her speed.

Second, Rehnquist didn’t want that flat question about Roe v Wade to be focused on, so he decided, she's not going to get to pick her question and force us to say we’re overturning Roe. We're not going to do it. When Kolbert stood up to argue the case, she knew she wasn’t supposed to talk about her confrontative question. But she stood up there anyway in front of the justices in that huge courtroom and said, I'm going to talk about how you’re about to overrule Roe v Wade. There was complete silence in the courtroom instead of the justices starting to ask her questions because nobody wanted to talk directly about that.

But Kolbert had decided she wasn’t going to let the real issue in the case be glossed over. She was prepared to have them decide Roe v. Wade was overruled. She wanted a ruling that was openly pro or con, because even if she lost, she would have forced the real issue, gone to the truth of the case.

I feel that women’s rights lawyers must stop trying to get around the Supreme Court’s avoidance methods, its intermediate scrutinies, its quasi-class, its use of other rights like First Amendment rights as proxies, its political use of re-listings and case selection, its tolerance of dark money interference, its incessant chipping away at women’s rights precedents, and a number of other tactics I've identified. Women lawyers will do well to assume that the most important legal doctrine of U.S. law, the doctrine of stare decisis, which means the rule of case precedents, will only be applied when it’s convenient. Kolbert did well to insist Roe be unequivocally and openly overruled, if the justices had the nerve.

Katherine: So what happened then?

Pam: Sandra Day O'Connor stepped in and saved the day, mobilizing the other justices so that they came up with a compromise that removed some restrictions from the disputed law and kept others. They didn't overturn Roe v. Wade in that case. Women continued to have a right to abortion for thirty more years.

I'm really glad Kolbert did that audacious thing of standing up and saying, look, this is what the case is really about. I’m not going to talk about side issues. Are you going to overturn this constitutional right, or not?

Katherine: So, let's be honest. Let's cut to the chase sort of a thing.

Pam: Yeah, I think what goes on is a great deal of dishonesty. A very great deal of dishonesty. That's what these doctrinal tactics are. For instance, you mentioned originalism, which is a novel method of legal interpretation very popular right now among the conservative Catholic justices.

It's a legal theory that presumes women could never have any fundamental rights because they didn't have those rights in 1787 or 1868 when the 14th Amendment was adopted. Why did these justices adopt originalism? Well, a lot of law experts think it was mainly to ensure women could not have an abortion. It was reverse engineering to achieve a result they had already decided on. That's why that method of interpretation suddenly became so popular.

Same thing with the legal interpretation system of textualism that was used by Justice Gorsuch in the Bostock case. That case surprised court watchers because this conservative justice decided that the word “sex” includes sexual orientation and transgender status. He only looked at the words of the statute and then performed some pretty poor logic on the words. Gorsuch quoted from a pop dictionary or two. He didn't pay any attention to the legislative intent of the statute or what anybody thought about anything to do with the statute, just the words of the statute.

And that was his method in total for interpreting this crucially important question of law. He said his decision would be limited to the educational realm of Title IX of the Civil Rights Act, a limitation he had to know would be ignored. He didn’t mention that while his decision meant new and separate LGB and T classes would now be protected under Title IX, there were hidden consequences because he stashed these groups into the category of sex discrimination. I think that the Bostock case doesn’t give these groups their constitutional rights, only statutory rights that can be easily lost. Those new classes still will have to fight to be included in the Constitution. And if they get there, they will find that due to the Bostock case they are second-class quasi-suspect citizens right down there with the women. No strict scrutiny for them.

These kinds of judicial decisions get dressed up in very fancy words that intimidate people. And that angers me. I really am anxious to write about this type of intimidation and dishonesty that I see time after time in these epic moments when history is ready for change.

Katherine: So it sounds like a goal of your series of articles is to make all of this stuff that is so arcane for people who are not lawyers, women who are not lawyers, to understand, and to make it more accessible to people.

I mean, I think we all have a sense of, yeah, they're finding a way to rule against us, but we don't really understand how it's happening. Would you say that's a fair way to describe one of your goals of this series?

Pam: Yes, absolutely. And that's one of the things I'm going to do to try to be clear on, for example to talk about four or five particular women who have been involved in these epic moments. One of them is Dred Scott's wife Harriet, who filed a separate lawsuit to be freed from slavery. One of them is Abigail Adams. One of them is Pauli Murray, who was a co-founder of NOW who overcame all obstacles. And one of them is Wendy Murphy, a lawyer who recently filed a lawsuit for a group called Equal Means Equal, asking the Supreme Court to force the National Archivist to publish the ERA, or at least let her suit proceed. So far, the results haven’t been good. It’s another epic and none-too-happy moment in women’s legal history.

But I think what you're raising in a larger sense is what are we to do at this point? We've lost the ERA perhaps again, or maybe it'll be another hundred years before it'll come back on its own. So the obvious thing that I think we're going to turn to now is state ERAs, because those are passing in quite a few states now, most recently in New York. You can use those state ERAs to obtain rulings like, that's a state equal protection matter. Women are a suspect class in this state.

But another thing I think about is that many many women are now lawyers. We're in law school. Some are members of the Supreme Court Bar. The obstacles that affected women like Belva Lockwood or Pauli Murray don't affect us as much any more. We can learn. We can practice law. We can see through tactics. So let's confront the unfair tactics when we're litigating. Let’s point straight at the truth and raise the roof about our losses.

Women lawyers handling civil rights cases can stop saying, okay, we’re playing on your terms, and okay, the intermediate tier of review is the standard, the state must have a compelling interest, or maybe it's an exceedingly strong interest. Perhaps it's this, perhaps it's that. Anyway, whatever it is, here's how our case fits into your tiny little technical pretextual kind of way of excluding women. Instead of doing that, we need to say, we require the Court to look at our issue using the strict scrutiny standard, because our rights are equal to religious and racial rights. The point is, women are being excluded. It's an equal protection question. It’s a question of fundamental rights ratified by our entry into the Constitution via the Nineteenth Amendment. Are you telling us we have no fundamental rights just because you jimmied up originalism?

So refuse to do the tiny little box of legal tricks left to us to use and open up the field again. Let them throw us out of court. They threw Harriet Scott out of court a hundred and sixty-eight years ago, because of her race AND because of her sex. It has to stop sometime.

Katherine: So, the series is for lawyers? You have said you wanted to take a sort of a satirical approach, to be entertaining with it.

Pam: I want to not talk in legalese because I think that that is very intimidating to some extent. But yes, to some extent, I am talking to women lawyers here, I think. I want them to step up and rise above the little box that they're kept in and get busy on this. Women have a fundamental right to security that never gets talked about. Male violence, male predation, is sex discrimination that has to be talked about. Sex discrimination covers the private sphere. Pornography is sex discrimination. Nobody is talking about that anymore. And now we have religion stepping in with a whole new set of dark money, stacking courts, paying off amicus brief filers, and interfering with women again.

And lately, there is a very clever new tactic, which is co-opting the free speech right into a religious right, in a very important case called 303 Creative v. Elenis. The Court has carved out a broad religious exemption to discriminate against other protected classes. The Court has ruled that people in private business, little businesses like a website designer, can say I'm not going to serve you, even though I'm a commercial establishment and supposed to not discriminate. I don't feel like serving you because you're gay. I don't feel like taking your money because you're female. You're a single mother and I don't like that. My religion doesn't like that.

The court has just decided that religious people can discriminate. And I really intend to bite into that case, you might say. It is high time for women to fully populate both the public and the private spheres with the support of the law.

Katherine: Well, I'm really looking forward to this series. And I hope everybody will check out Pam’s substack when it launches. I will definitely post about it on notes. When do you think you'll have your first article ready?

Pam: I'd like to be done by the end of January with the first article. I don't know how many there'll be in total. I think it depends on how important the material starts seeming to me in terms of talking about more things than I started planning on.

Katherine: What's the topic of your first one? Can you share it?

Pam: Well, I have to start with looking at the Constitution and the original exclusion of women from the Constitution. First show how we were excluded. Then I can talk about how we've kept being excluded all the way up to the present.

Katherine: That sounds great! Thanks so much for the conversation, Pam. I look forward to reading and circulating your work.

Pam O'Shaughnessy: Thanks a lot for having me on your Substack!