Women's Rights and the Limits of Constitutional Doctrine

Abstract

The law of sexual equality provides an exception to almost every generalization which can be made about Supreme Court during Warren Burger's tenure as chief justice. The Burger Court was less committed to protecting individual rights than Warren Court had been--except for their respective records on women's rights. The Burger Court was respectful of precendent-except for this departure from sixty years of entrenched precedent. The Burger Court was neither revolutionary nor counter-revolutionary except for decade in which it transformed constitutional law of sex discrimination. If we examine doctrine alone, Burger Court emerges as best judicial friend women's movement ever had. But, then and since, actual beneficiaries of actual cases include more men than women. The results seem to support Nora Ephron's observation that the major concrete achievement of women's movement in 1970s was Dutch treat (1983: 81). This article provides an explanation for disappointing results of new doctrine.