Margaret Thatcher and Women in Government

“I am extraordinarily patient, provided I get my own way in the end.”

— Margaret Thatcher

One of the world’s most powerful women died today.  Margaret Thatcher, Britain’s only woman prime minister, was 87.

Thatcher, leader of the country’s Conservative Party, was British prime minister from 1979 to 1990.  According to CNN.com, she shared “a close working relationship” with former President Ronald Reagan, “with whom she shared similar conservative views.” Initially dubbed “Iron Lady” by Soviet journalists, she was well known (for better or for worse) for her personal and professional toughness. (For interesting commentary on Thatcher and her impact, see here, here, and here.)                                               

Thatcher was a trailblazer, one of just a very few women to become heads of their country’s government. While women make up nearly half of the world’s population, worldwide, they represent roughly 16% of the members of national governing bodies.  In the United States, women account for only 18.1% of Congress, 33% of the United States Supreme Court, and no woman has ever been elected president.

So, what’s the problem? Some would argue that there’s nothing stopping women from running for office, even for president. True, there are no laws that outright prohibit women’s participation in government.  (Saudia Arabia, long the hold out on allowing women to vote and to serve in government, has finally reversed course.)  But there are other barriers that may be less obvious.

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Same-Sex Marriage as Divorce

supreme courtBack in 2010, I wrote an article (published in January 2011) asking the question of, essentially, what if the states became stuck on the question of whether same-sex couples could get married? What if they divided, half of them banning same-sex marriages as an affront to the dignity of marriage, and half of them insisting upon the right of their citizens to marry someone of the same sex? Would the states be locked into a patchwork quilt of marriage and non-marriage, with married couple’s rights fading in and out of existence as they crossed the country, or was there some way out of the dilemma?

Our system was born federalist in 1789 but has been getting progressively more nationalist ever since. Most issues that divide the country can be resolved in some way at the national level, either by Congress passing a law under its increasingly expansive Commerce or Spending Clause powers, or by the Supreme Court wielding the Bill of Rights and the Due Process or Equal Protection clauses of the Fourteenth Amendment. But that does not cover the universe of potentially divisive issues. Particularly destabilizing are social statuses designated by state law but not one of the “suspect classifications” of the Equal Protection Clause. For example, same-sex marriage.

In my article, I considered a way to resolve the inevitable disputes that would arise if the system became stuck: half the states recognizing same-sex marriage, half not, and the Supreme Court unwilling to extend Equal Protection doctrine to cover sexual orientation. But towards the end, I noted another possible outcome: the dispute over same-sex marriage could follow the path divorce did in the early twentieth century.

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Important Points Won Even as ACA Case Was Lost, Paul Clement Says

Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.”

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