The three women happen to have been appointed by Democratic presidents: Ruth Bader Ginsburg, appointed by President Clinton, and Elena Kagan and Sonia Sotomayor, appointed by President Obama. And of the six male justices, five are moderately to solidly conservative: Anthony M. Kennedy and Antonin Scalia, appointed by Republican President Reagan, Clarence Thomas, appointed by Republican President George H.W. Bush, and Samuel A. Alito Jr. and John G. Roberts Jr., appointed by Republican President George W. Bush.
That means that every time the three female justices vote as a bloc to dissent against a majority opinion in which the five conservative justices vote as a bloc — such as, oh, say, the contentious 5-4 Hobby Lobby decision of June 30 — liberals play a game called the “Male War Against Women.”
The Hobby Lobby ruling is ideal for this kind of game-playing because it involves contraceptives that the Christian owners of a company, claiming federal religious freedom rights upheld by the Supreme Court majority, didn’t want to include in their employee health plan because the contraceptives can act as abortifacients. In the mind-set of liberals, contraceptives — and abortion — are always all about women.
And everyone in the liberal world forgets — or pretends to forget — that the Supreme Court also contains a fourth liberal justice, Stephen G. Breyer, another Clinton appointee, who happens to be a man. And everyone forgets — or pretends to forget — that Breyer voted with Ginsburg, Kagan and Sotomayor, which made the Hobby Lobby decision a 5-4 decision and not a 6-3 decision. Because then the Hobby Lobby case wouldn’t have been a battle in the Male War Against Women. It would have been a plain old liberal-conservative battle, with all of the Supreme Court’s conservatives lined up on one side of the interpretation of the federal Religious Freedom Restoration Act and all the Supreme Court’s liberals lined up on the other side.
That would be boring. It would also sweep away the political hay that feminists and other liberals are trying to make out of the Hobby Lobby decision. “Conservative War Against Liberals” just doesn’t sound as gripping as “Male War Against Women.”
The latest to play the game is none other than Ginsburg herself, author of a 35-page dissenting opinion in Hobby Lobby in which she maintained that the craft chain’s owners had “no constitutional right to foist [their religious beliefs on abortion] on the hundreds and hundreds of women" working for them.
In a Yahoo News interview with Katie Couric late last month, Ginsburg said, in response to a question by Couric, that she didn’t think the Supreme Court’s “five male justices” understood “the ramifications” of the Hobby Lobby ruling. She added: “They have wives. They have daughters. By the way, I think daughters can change the perception of their fathers.”
“Five male justices”? Again — um, what about Breyer? But Ginsburg was merely picking up the standard Male War Against Women meme. A video titled “Supreme Court: No Girls Allowed” parodied the justices’ decision-making process in Hobby Lobby as a bunch of little boys playing with action figures in their fort. “The Supreme Court is still very much an old boys’ club,” commented the Huffington Post’s Alanna Vagianos. Even more pointedly, Democratic Senate Majority Leader Harry Reid (D-Nev.) denounced “these five white men” on the court who had voted to uphold the owners’ religious freedom rights. Because Clarence Thomas’ skin is so very white.
But of course forgetting about inconvenient facts — such as that a black Supreme Court justice voted with the white majority in Hobby Lobby or that a white male Supreme Court justice voted along with the female justices in dissent — is the whole liberal point. Otherwise we wouldn’t have a Male War Against Women. We’d just have a Supreme Court decision interpreting a federal statute.