In a Newsweek article with the headline ?Women: Truly the Fairer Sex,? Dahlia Lithwick offers the case for the preferability of female jurists:
Men, the theory goes, prefer their law with rigid rules, clear lines and neutral principles; women prefer to look at the totality of the circumstances and favor what Gilligan calls an “ethic of care” over an “ethic of rights.” So, for example, feminists argue that O’Connor’s preference for flexible standards regarding abortion (or for nonbelievers in cases about religion) reflect a softer, more “relational” approach to the law, while Justice Antonin Scalia’s emphasis on unchanging rules and crisp legal principles is, fundamentally, a guy thing.
In this interpretation, fairness seems to entail turning over legal decisions to wise overseers who will use their ?ethic of care? to decide outcomes of particular disputes. That?s quite different from real fairness, which entails setting ground rules and enforcing them, while allowing change to occur through clear, legally prescribed processes.
It?s a fundamental tenet of Scalia?s originalism.
