One Big Thing Connects Sam Alito’s Recent Comments About Roe v. Wade and the “Cornell Seven”
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The alleged gang rape scandal that continues to unfold at Cornell University serves as yet another reminder that the legal system puts structures into place that should ostensibly protect women from being drugged, assaulted, and gaslit, and yet it persistently fails to manage any of the above. On this week’s Amicus podcast, Dahlia Lithwick spoke about the myriad ways in which the legal system cannot meet the moment with respect to women, with Julie Suk, the Leonard F. Manning professor of law at Fordham University. Suk’s scholarship focuses on the processes of constitutional amendment and reform and the feminist constitutional movements. Her most recent book, The Shadow Court: Rescuing Democracy From the Supreme Court , was published last month and attempts to reclaim the constitutional system for the people. A portion of their conversation has been edited and condensed for clarity below.
Dahlia Lithwick: So much of the work you’ve done has been rooted in this idea that our legal structures, in some ways by design, have always failed and continue to fail women and vulnerable communities. We’re in a moment where the shadow of this Cornell case is hanging so heavy. We’re watching another generation of young women—who maybe didn’t live through #MeToo and Epstein Island and Christine Blasey Ford—who are just looking around at the Cornell story and saying, “Where is the law? How are we moving backward instead of forward?” What do you have to say about this moment?
Julie Suk: It seems at a basic level we did not have criminal law—or the administrative structures of a university in the Cornell case—remedying, giving justice to, or creating conditions under which Jane Doe could actually continue her education. She left the school after the trauma, to which there was no institutional response. I think the problem in this case tracks what I argue in After Misogyny , which is that the legal structure is connected to a culture which basically enforces the overentitlement of men to women’s forbearance and sacrifices.
If you look at all of those Snapchat messages in the fraternity in the Cornell case, the concept of “free pussy”—pardon my language, but I think those were the words—the very concept is We are entitled. Here it is. Take what you’re entitled to. And that connects to a legal system that does not recognize the overentitlement of men to women’s sacrifices, forbearance, and pain.
It’s not just in the gender violence or nonconsensual sex settings. There’s a similar dynamic societally, where we ban abortion because the society is overentitled to women’s sacrifices for the public good, so childbearing and child-rearing become entitlements too. And the law just doesn’t recognize that as a problem. That’s just our baseline set of entitlements. That’s why the law fails.
I’m not saying we would have to go to a different standard with regard to consent in criminal rape law. I think there are a lot of different ways and different bodies of law that could respond to this overentitlement problem. I think the public debate has really focused in this case on the question of whether the criminal law failed. I don’t have a strong view on whether or not I think the criminal law should change because of this case.
Instead, it’s worth looking at things that seem much more attenuated from the facts of this concrete case. It’s shocking but not surprising that the overentitlement dynamic, which I call misogyny, takes over. The way that social life is structured in universities, because of choices that are made about not recognizing fraternities, or choices that are made about drinking in dorms; a whole bunch of choices that—at least in terms of male-dominated spaces like fraternities—entitlement takes over because the universities generally say, “Well, the fraternities are not part of us, so we’re not responsible,” or, “That’s not within our jurisdiction exactly.”
We need to start thinking not just about the criminal law, but the way in which we structure the institutions where opportunities are distributed, in which inequalities are perpetuated, as social spaces that need to be restructured so that the overentitlement of men to women’s bodies, to women’s forbearance, to women’s reproductive labor—all of those things have to be rethought.
I don’t have a simple criminal law answer to all that, but so much of what I want to do in my work as a law professor and as a political theorist is think about the way that new and different institutions can empower people who are not currently empowered.
Last week, Justice Samuel Alito gave an interview to Jan Crawford of CBS about his new book. And in that interview he discussed why he thinks it unlikely the court will overturn the marriage equality decision, Obergefell . He essentially said that Obergefell is safe because Americans have a reliance interest in it. People structured their lives around that liberty. Crawford pointed out that a lot of people felt they also had a reliance interest in Roe v. Wade , that “people thought that, that Roe was settled law of the land, and obviously there were consequences when the court overturned Roe and Casey .” And to that Justice Alito responded: “After Obergefell , people of the same sex got married and entered into contracts, and so there was much, it was much more concrete.” He went on to say that “The argument was made that it had an effect on people’s ideas, women’s ideas about the kind of society they were going to live in. This would have an effect on society. It was much more abstract than what would’ve been involved had we been asked to overturn Obergefell. ”
I think what he’s saying is that women’s reliance interests in Roe for 50…
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