Williams on Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood @BYULaw

Lucy Williams, Brigham Young University Law School, is publishing Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood in volume 102 of the North Carolina Law Review. Here is the abstract.

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language. My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently. These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

Download the article from SSRN at the link.