It’s been a rough year at the Supreme Court for feminists. The Justices curtailed voting rights; Baby Veronica was separated from her father; the Hobby Lobby contraceptive mandate arguments on Tuesday didn’t seem to go our way. But a distinctly feminist decision on domestic violence (DV) law, written by Justice Sotomayor and issued on Wednesday, should restore a little of our faith.
In United States v. Castleman, the Court unanimously held that a man convicted of misdemeanor domestic assault was prohibited by federal law from owning a firearm. The statute in question, 18 U.S.C. § 922(g)(9), already banned everyone found guilty of a “misdemeanor crime of domestic violence.” But Mr. Castleman claimed that the state-defined crime of which he’d been found guilty — “intentionally or knowingly caus[ing] bodily injury to” the mother of his child — didn’t count as domestic violence because it didn’t require physical force. Scarily, the lower courts agreed. The District Court (the first court to hear the case) relied on a weird hypothetical in which someone poisons a partner and therefore causes “bodily injury” without physical force. According to the District Court, that person shouldn’t be subject to the firearm ban… because clearly we want dudes walking around with poison and guns.
Luckily, the Supreme Court has no time for these shenanigans and unanimously reversed the lower courts’ holdings. Justice Sotomayor’s majority opinion broke down exactly why sticking to a narrow definition of violence ignores the very real harms committed within our homes and our relationships. She writes:
“Domestic violence” is not merely a type of “violence”; it is a term of art encompassing acts that one might not characterize as “violent” in a nondomestic context . . . Indeed, “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting.” . . . Minor uses of force may not constitute “violence” in the generic sense. . . . But an act of this nature is easy to describe as “domestic violence,” when the accumulation of such acts over time can subject one intimate partner to the other’s control.
I get nervous whenever someone creates ranked classes of violence, as Sotomayor does here: she distinguishes between acts that are always violent and those that are sometimes violent, and I don’t like her labeling of any kind of force as “minor.” But the Justice isn’t pulling the DV equivalent of Whoopi Goldberg’s “rape-rape” comment; Sotomayor isn’t saying, like Goldberg, that some violence is serious and some is not, but rather that context matters. Some forms of abuse may be more obviously violent than others to a judge without personal experience with DV, but the Court’s decision in Castleman pushes all of us to recognize the ways power and position transform an act. The law can’t concern itself with a slap or push in the abstract, but must be sensitive to who perpetrates, who is hurt, and the meanings and effects of that harm, inevitably shaped by personal and political circumstances. In short, Castleman demands that our law root itself in history and empathy.
That’s not to say that I’m thrilled the statutes before the Court are so fixated on physical violence: abusers who employ emotional weapons shouldn’t have guns, either. Sotomayor’s decision, though, takes firearms out of the hands of a lot of dangerous people while setting a clear, expansive, feminist definition of harm.
Although the ruling was unanimous, Justice Scalia still managed to fit in some of his classic conservative hysteria. Filling in for the hyperbolic, over-talkative white boy in your criminal law class, Scalia writes that the majority’s idea that “an act need not be violent to qualify as ‘domestic violence’ . . . [is an] absurdity . . . at war with the English language.” (Is that physical war, Justice Scalia?) He managed to come out against Mr. Castleman on other grounds, but it’s clear that Scalia fundamentally misunderstands the majority opinion: Sotomayor doesn’t write that not all DV is violent, but that the substance of violence isn’t contained to the physical act alone.
Unwittingly, Justice Scalia demonstrates the importance of the Court keeping step with evolving social norms. As he tends to do, Scalia fixates in Castleman on definitions of violence used at the time the statute was passed, tying himself to outdated notions of DV. Narrow conceptions of violence have long served to protect abusers at the cost of justice and safety, and for the last half-century survivors have pushed the country to reconsider what constitutes gendered harm worth combating. Their progress is clear in Justice Sotomayor’s majority opinion, while Scalia’s concurrence exposes the lingering legacy of a history of invisible violence.