Terzo potere. Leading cases e paritá di genere nella giurisprudenza della Corte Suprema degli Stati Uniti d’America

Abstract

The essay reconstructs, in broad strokes, the evolution of U.S. law on gender equality, told through the 'own words' of a woman extraordinary protagonist of the process of creation and elaboration of the so-called antidiscrimination legal doctrine: Ruth Bader Ginsburg. The reconstruction is accompanied by some critical reflections, which also draw on the reflections of, Elisabetta Grande, a comparative jurist and an attentive scholar of the Supreme Court of the United States (SCOTUS). The analysis focuses on the protection of the right to equality in the United States primarily through case law, through the interpretation of the Fourteenth Amendment equal protection of the laws clause, which, at a certain stage and for a long time, was interpreted narrowly through an originalist hermeneutical approach and, only from a certain point onward, begins to show its growing potential. Through a historical survey, from a diachronic comparative perspective, the contribution traces the role of different legal formants in the U.S. legal system and the one of the American Civil Liberties Union in the struggles for gender equality. It offers some reflections on the activism and self-restraint of the Court in interpreting its political role across different decades. In the concluding section, he records a shift in the Court's institutional role and its posturing in relation to other formants of the U.S. legal system with specific reference to the issues of women's right to abortion and reproductive self-determination.