Violence against women and their bodies took center stage at the Supreme Court Wednesday, but you wouldn’t know it based on the questioning from the justices.
First up was McCullen v. Coakley and the “plump grandmas” challenge to a Massachusetts buffer zone law. Abortion rights supporters knew going into the arguments that this would be a tough sell to the Roberts Court, but just how tough was immediately apparent. Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, the three dissenters in the Court’s last buffer zone decision, have obviously not changed their minds. Justice Kennedy attacked the idea that the law was content-neutral, insisting it was about silencing anti-choice speech, not preventing violence. Meanwhile Justice Scalia carried Operation Rescue’s water repeatedly insisting that what the anti-choice challengers want to do is just “talk to the people.” Justice Alito took that one step further, blanketing the actions in hushed tones. “What these people want to do,” Justice Alito said, “is speak quietly.”
Notable, though, was the silence of Chief Justice John Roberts. Roberts is no stranger to anti-choice activism. During his time with the Reagan administration, Roberts was involved in presidential messaging around abortion, including signing off on proposed answers to an interview Reagan did with Pat Robertson, where Reagan cited the “tragedy of abortion” as an example of American culture that would “displease God.” Roberts also helped approve a presidential telegram delivered to a memorial service being held for 16,500 fetuses. Those telegrams again referenced the “abortion tragedy,” and, even better, compared the Dred Scott decision sanctioning slavery to Roe v. Wade, waxing poetic that the toll at Gettysburg could be traced to Dred Scott like the 16,500 deaths could be traced to Roe. And as deputy solicitor general he argued in an amicus curiae brief in Bray v. Alexandria Women’s Health Clinic that the actions of Operation Rescue protesters and a half dozen other clinic blockaders did not discriminate against women because “the right to have an abortion is not a fact that is specific to one gender.” So maybe the chief justice was silent because he’s already pretty clear on how he feels about the buffer zone issue.
But Roberts is also an astute politician, and if his time doing anti-choice messaging for the Reagan administration taught him anything it was that appearances and rhetoric matter more than facts and reality. Which is why buffer zones may not be thrown out altogether, just narrowed to the point of being functionally useless. To get there—to the point where Chief Justice Roberts votes to uphold buffer zones in some limited fashion—he’s going to have to take the cover of Justice Elena Kagan, whose questioning seemed to be searching for some distinction for those buffer zones confined explicitly to stopping violence or actual physical obstruction.
And that was the common theme from Wednesday’s argument: how and where to draw the line between acceptable and unacceptable threats to women’s safety. The Court then turned its attention to the case of United States v. Castleman, a challenge to a federal law that prohibits those convicted of misdemeanor domestic violence crimes from owning a gun. At issue in United States v. Castleman is the Lautenberg Amendment, which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines this as a misdemeanor under federal, state, or tribal law by someone who (as relevant here) has a child with the victim, and which “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” The Lautenberg Amendment was passed in response to what attorneys for the Department of Justice called a “dangerous loophole” in gun laws that allowed domestic abusers to own firearms because domestic violence convictions were often misdemeanors.
Relying on a 2001 guilty plea to a misdemeanor “domestic assault” charge in Tennessee court, federal prosecutors charged James Castleman under the amendment. The state law Castleman plead guilty to prohibits an “assault” against someone with whom you have a child and defines assault as “intentionally, knowingly or recklessly” causing “bodily injury to another” or “intentionally or knowingly causing physical contact with another [when] a reasonable person would regard the contact as extremely offensive or provocative.” The statute defines “bodily injury” broadly, and it is the breadth of that definition at issue in the case.
Castleman challenged the law, arguing his conviction didn’t qualify because it didn’t include the use of physical force, which meant after the justices finished debating whether Operation Rescue operatives could “speak quietly” to patients as they enter abortion clinics, they turned their attention to whether or not domestic abuse requires a showing of physical injury or harm to justify taking away someone’s guns.
Predictably, Justice Scalia expressed his discomfort that domestic abusers were being singled out for firearm prohibition, questioning whether the statute was even necessary. Just as predictably, Justice Kennedy constructed a hypothetical that involved a domestic abuse conviction stemming from a freak accident, a camera, and a cliff that set up the Chief Justice to huff that there was simply no limit to the kind of conduct the statute seeks to ban.
And, as she had done early that morning, Justice Kagan appeared to be searching for a compromise, a line to draw, suggesting that perhaps the happy medium was to find that the ban applied to convictions based on conduct that caused actual, bodily injury but would exclude convictions based on “offensive touching” because that clearly “just goes too far.”
So that’s where we are, in 2014: debating just how much force can be applied to women and their bodies before an abuser loses their right to speak or sacrifices their right to own a gun. And what’s worse is that by starting the analysis here—by parsing the assaults in terms of the impact on the rights of the abusers—women’s rights never really stood a chance.