Analysis Law and Policy

New York Court Affirms Moving Out of State While Pregnant Is Not ‘Absconding With a Child’

Jessica Mason Pieklo

A decision last week illustrates that the fight for fetal "personhood" rights is happening on many fronts.

Anti-choice activists routinely pit the rights of pregnant people against the rights of their developing fetus as a means to justify policing their behavior and holding them criminally accountable for the outcomes of their pregnancies. But a recent case out of New York shows those efforts are not limited to abortion restrictions and prosecutions for feticide, but have even shown up in custody disputes.

The plaintiff in this most recent case lives in New York, but she used to live in San Diego, where she was working as a firefighter at Camp Pendleton. After becoming pregnant, she decided to quit firefighting and instead go to college, figuring as a single mother the benefits of a college degree outweigh the risks inherent in firefighting. After looking at colleges in California, Connecticut, and New York she decided to attend Columbia University and, at seven months pregnant, moved to New York to start school.

The plaintiff had no real relationship with the father of her child. He had no involvement in her decision to move, and around this time had married another woman. After the birth of his son, he declined invitations to come to New York and meet him. Assuming the father wanted no part in her son’s life, the mother began a proceeding in New York courts to seek sole custody of the child. But once the father got notice of the custody action, he began his own proceeding in California. Confusingly, California uses the same form to begin a paternity proceeding as to begin a custody dispute; in this case, the father told the court he was seeking both an order of paternity for a child not yet born and custody. To make matters worse, the father was able to quickly get an order from the California court granting paternity before the mother’s attorneys had a chance to respond. With that order in hand, the father pushed for custody in California, arguing the decision to move while pregnant was “tantamount” to parental kidnapping.

With dueling custody actions in both New York and California, the courts had to decide where the proceeding would take place. The attorney for the father appeared in New York and argued the New York case should be dismissed, with the California court making the custody determination. Typically, the determination of where a custody case is to be heard is driven by the “home state” of the child. The mother argued that New York was the “home state” since her child had been born in the state and lived with her since birth. But the father argued the California court, which had already established paternity before the attorneys for the mother had notice of the proceedings, should ultimately determine custody.

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The New York Family Court agreed and, in May, granted his motion to dismiss the New York custody case. The reasoning of the family court referee shows a disturbing disregard for the rights, let alone the basic autonomy, of the mother. According to the court referee, the mother, by virtue of relocating from California to New York while pregnant, committed an “appropriation of the child [sic] while in uteri [that] was irresponsible, reprehensible.”

“The referee’s decision had far-reaching implications for pregnant women, effectively stripping them of fundamental constitutional rights,” said Sarah Burns, professor of Clinical Law at NYU Law and director of the Reproductive Justice Clinic, in a statement released after a New York appellate court overturned that decision. Burns and her clinical students, joined by the National Advocates for Pregnant Women (NAPW), the New York Civil Liberties Union, and nine other organizations, filed a brief in the case, detailing just how the determination that moving while pregnant was an “appropriation of a child” would have far-reaching constitutional implications. If left standing, the referee’s interpretation of the custody statute would place unconstitutional constraints on a person’s basic life decisions, such as where she lives, works, and attends school while pregnant. Lynn Paltrow, executive director of NAPW, explained the constitutional significance of the decision in a statement as well. “This decision affirms that women who become pregnant may not be penalized for exercising their rights to travel and to seek an education,” she said.

Last week’s decision is significant for a number of reasons. To begin with, it reaffirmed that, as a general rule, courts cannot hear custody matters that are filed prior to birth, since a developing fetus should not be considered a child for custody determinations. More specifically, in this case, the court went further to underscore that the mother’s relocation should not have been relevant to New York‘s jurisdiction over the custody dispute in the first place. To make that move relevant, the court reasoned, men claiming to be fathers could limit the movement of pregnant women, and “[p]utative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.” Finally, the decision is a strong affirmation that a person does not give up their rights once they become pregnant, and that reproductive autonomy extends well beyond the initial decision to terminate or continue a pregnancy.

Correction: A version of this article referred to the group National Advocates for Pregnant Women as the National Association of Pregnant Women. We regret the error.

Analysis Violence

Facing Years in Prison for Fleeing Abuse: Cherelle Baldwin’s Story Is Far From Unique

Victoria Law

Starting Monday, 12 jurors will begin to hear evidence about Cherelle Baldwin, a 24-year-old Black woman from Bridgeport, Connecticut, whose attempts to escape her ex-boyfriend ended in his death.

Who has the right to self-defense? Starting Monday, 12 jurors will hear evidence about Cherelle Baldwin, a 24-year-old Black woman from Bridgeport, Connecticut, whose attempts to escape her ex-boyfriend ended in his death. Baldwin has been detained for nearly three years awaiting her second trial on charges of murder. Her first trial, which lasted six weeks in early 2015, resulted in a hung jury and mistrial. If convicted this time, she may spend decades in prison.

In 2013, Baldwin had been granted a court order against her ex-boyfriend Jeffrey Brown. But the piece of paper didn’t stop Brown from continuously texting, calling, and showing up at Baldwin’s house to demand access to their toddler son as well as his ex-girlfriend’s phone and cash, according to Baldwin’s family.

On the morning of May 18, 2013, Brown sent Baldwin a series of texts. At 6:49 a.m., he texted, “I said what I said so u could take it however u want u but after today u will have to call the cops cuz it over today.” When Baldwin told him to leave her alone, he responded, “N u will see how crazy shit will get today.”

Shortly after, he showed up at her house. According to a police affidavit obtained by AlterNet, Baldwin told them that Brown had climbed through her window, then attacked her: “He pulled a knife and choked her with his belt.” Baldwin managed to escape, running outside and into her car. “He managed to get in the car and proceeded to choke her again,” the affidavit stated. “Then she got out and fell as she did and the car ran over her leg and that he also got out to chase her[,] and the rest happen[ed] too fast and she wasn’t sure how he ended up in front of the car.”

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When police arrived, Brown was dead and Baldwin had a broken leg. The baby was in the house, unharmed. Baldwin was taken to the hospital; three weeks later, she was charged with first-degree murder. Her bail was set at $1 million, an amount her family was unable to afford, so Baldwin was sent to the state’s women’s prison, York Correctional Institution in Niantic, to await her trial. In early 2015, after five days of deliberating (and listening to tape-recorded testimony from Baldwin herself), 11 jurors wanted to either consider lesser charges or acquit Baldwin altogether. One juror held out, and so the judge declared a mistrial. The prosecutor vowed to retry her case, and Baldwin was sent back to Niantic to await her next day in court. She has been there ever since.

Baldwin’s experience illustrates how the justice system frequently criminalizes and prosecutes abuse survivors, often after this same system failed to stop the domestic violence. Because self-defense laws frequently don’t explicitly take domestic violence into account, the onus is on survivors like Baldwin to convince a dozen strangers that they were truly in fear for their lives when they took the actions that landed them in court.

“When Jeffrey Came, It Was a Whole Different Story”

In 2010, 19-year-old Baldwin was a student at Porter and Chester Institute in Stratford, Connecticut, studying to become a medical specialist administrator and working two jobs. While filling her tank at a gas station, she met Brown. The two talked, exchanged numbers, and began seeing each other.

“The next thing I know, Cherelle is not coming home at night,” said Baldwin’s mother, Cynthia Long, with whom Baldwin had been living at the time, in an interview with Rewire. But Baldwin didn’t bring Brown to meet her mother until the following year. By then, she was two months pregnant, and she and Brown were planning a future together.

Weeks before the baby was born, Baldwin called her mother and asked if she could spend the night. Long told Rewire that her daughter, usually a peaceful sleeper, was fighting and crying in her sleep. “I had to wake her up,” she recalled. But if she had any recollections of her dreams, Baldwin kept them to herself. She also kept quiet about any problems she and Brown were having.

Long does recall that Brown was controlling. At family gatherings, she recounted, “When he said, ‘Let’s go,’ she had to be ready to go.” Baldwin also began behaving differently, needing to clear things with Brown before making decisions.

“She always had to check with him,” her mother recalled. “That wasn’t Cherelle. Before that, she always made her own decisions—she pretty much held her own. But when Jeffrey came, it was a whole different story.”

Baldwin also began to pull away from other family members. Baldwin had always been close to her cousin Latreesh, with whom she had grown up. But once she started dating Brown, Latreesh, who asked that her last name not be used, said they “grew apart.” At the time, however, Latreesh chalked it up to being busy with the new relationship and holding down two jobs.

When they did see each other, Baldwin would tell Latreesh about money being missing or times that Brown would take her car keys so that she wouldn’t be able to leave the house. But, Latreesh reflected, Baldwin may have remained silent about the extent of the abuse because “she probably didn’t want to put us in harm’s way.”

On New Year’s Day 2012, Long received a phone call. Brown had been in a car accident, wrecking Baldwin’s car. Baldwin told her mother that, when she asked Brown about the accident, “he shook her and the baby while she was holding the baby,” Long said. Then, Long said, he tried to break her phone. Long told her daughter that she was coming over and told her to call the police.

But, before she could leave the house, Baldwin called her again. “She said not to come because Jeffrey’s mother was coming,” Long said. Despite her mother’s urgings, Baldwin did not call the police. That was the first time that Baldwin had actually told her mother about any abuse.

Baldwin’s silence is not unusual. “A lot of times victims don’t disclose to anyone,” said Lenina Trinidad, an attorney who has represented abuse survivors in court proceedings, in an interview with Rewire. Trinidad has extensive experience working with abuse survivors and around issues of domestic violence. In addition to representing survivors in court, she has also served on several committees dedicated to examining domestic violence legislation and policy, improving court responses to domestic violence victims, and promoting public awareness about the issue.

There are several reasons that survivors may not tell their family and friends about the abuse, she told Rewire, including a lack of awareness that their loved one is abusing them. “Everyone has a different idea of what domestic violence or interpersonal violence looks like,” she explained. “Often, it begins with certain behaviors”—such as being controlling and encouraging isolation from friends and family—”then it escalates.”

But, Trinidad noted, physical violence often occurs once or twice at the beginning of the relationship. “From then on, fear of physical aggression keeps the victim under the control of the abuser. This is not a person walking down the street with bruises or lumps. But in essence, this person is being terrorized,” she said.

In addition, escalation can be gradual and people being abused may not notice until it is too late: “It’s a terrible analogy,” she said, “but it’s like the frog in boiling water.”

Trinidad also noted that it can be dangerous to disclose abuse: doing so risks even more escalation if the abuser finds out. At the same time, she stated, people in abusive relationships may not necessarily want to end the relationship; they simply want the abuse to end. Friends and family members, once told about the abuse, may pressure the survivor to walk away. Furthermore, the fear of being judged prevents many survivors from telling others.

Brown began confiscating his girlfriend’s phone, her family said, preventing her from calling relatives and friends. Baldwin began working at Yale-New Haven Hospital, which required Brown, who was not working at the time, to stay home with the baby. “He’d take the car and disappear and not return until late morning,” her mother recalled. Not having anyone else to watch their son, Baldwin was often late for work. According to Long, when she did get to work, Brown would then call her repeatedly. After a few months, Baldwin was fired.

By 2013, the couple had split and Brown had moved in with another woman. But ending the relationship doesn’t end the danger. According to Trinidad and many other domestic violence advocates, it is actually the most dangerous time for a survivor. Approximately 75 percent of women killed by their abusers have been killed after trying to end or ending the relationship. In Baldwin’s case, sharing a son with Brown made it nearly impossible to sever all contact with him.

Despite their separation, Brown continued to terrorize Baldwin. In February, he showed up at her house and began tossing her clothes out. When she tried to call 9-1-1, he grabbed her phone and threw it onto the ground, breaking it. He was arrested and eventually pleaded guilty to breach of peace. Baldwin was issued a court order. But neither the arrest nor the order stopped his harassment, threats, and violence. According to Baldwin’s mother, only days later he showed up and grabbed their son, forcing Baldwin to drive down the wrong side of the street to retrieve the toddler.

“She was really, really scared,” remembered Latreesh, who began watching the boy while Baldwin worked at her new job. Latreesh recalled one particular night when, after picking her son up, Baldwin asked her cousin to accompany her home even though she lived only a block or two away. “She thought he was following her,” Latreesh recalled. In the car, Baldwin told her cousin that Brown had been threatening her, that he had put his hands on her before, and that she was frightened.

In May 2013, Brown called Latreesh looking for Baldwin. When he learned that she was celebrating Mother’s Day with her mother at a local restaurant, he appeared outside the restaurant and called her, demanding that she bring their son outside. If she didn’t, he would come into the restaurant and make a scene. Baldwin capitulated and, although her family had already paid for her and her son’s meals, abruptly left the restaurant.

Six days later, on Saturday, May 18, Long received a distraught call from her son. Unable to make out more than the fact that something had happened involving Brown and Baldwin, she called Baldwin’s father, who lived in the apartment above his daughter. He told her that Brown was in front of the car and Baldwin, barely moving, was beside the car. He had already called 9-1-1. They were taken to separate hospitals. Brown was declared dead; Baldwin was treated for her broken leg and questioned by police.

Two days later, Baldwin began complaining about her back. That was when her mother saw the belt marks on her back, the bruises on her side, and the bruises around her neck. Long immediately took photos, but said that the police waited until that Thursday to do so. By then, Baldwin’s skin had begun healing and the marks were much less visible.

Three weeks later, the mail brought a warrant for her arrest.

Her family accompanied her to the precinct a few days later, where she turned herself in. Since then, she has spent nearly three years in prison. Her son, who will turn 5 years old in October, splits his time between Long and his paternal grandmother. He only sees his mother during prison visits twice a month. Although visits are supposed to last at least one hour, both Long and Latreesh said that they can sometimes be as short as 20 minutes.

Criminalizing Survivors

Baldwin’s story, of a domestic violence survivor criminalized for taking action against her abuser, is far from unique. One of the most famous examples is that of Marissa Alexander, the Florida mother who tried to argue she had been acting in self-defense—specifically, that she had been covered under the state’s “Stand Your Ground” law—by firing a warning shot into the ceiling to stop her husband’s assault. She was unsuccessful and was initially sentenced to 20 years in prison for aggravated assault with a deadly weapon. Her conviction coincided with the arrest of George Zimmerman, who successfully claimed Stand Your Ground in his shooting of 17-year-old Trayvon Martin; the timing drew wider attention and support for Alexander. The following year, an appeals court ruled that the judge’s instructions on self-defense were faulty and reversed her conviction. In January 2015, nearly four-and-a-half years after her arrest, Alexander agreed to a plea bargain for time served and two years of house arrest. She is now in her second year.

Alexander’s case is exceptional only in that it garnered such widespread attention and support. Across the country, stories of other abuse survivors serving long prison sentences for defending themselves have emerged—from Tewkunzi Green in Illinois and Cierra Finkley in Wisconsin, to Donna Jelenic in California and Valerie Seeley in New York.

But it’s difficult to know exactly how many other abuse survivors are in similar positions: Little documentation is available about the number of people who have claimed self-defense stemming from domestic or other types of violence. In 1999, the U.S. Department of Justice released a report stating that nearly half of women in local jails and state prisons had been abused prior to their arrests. That report, now 16 years old, is the most recent data available.

Self-defense laws don’t often reflect the reality of domestic violence. The law in Connecticut, for example, states that a person is justified in using “deadly physical force” against someone else if they believe both that their own life is in danger and such force is necessary to stop the attack. However, the law also states a “duty to retreat“: In other words, a person is required to retreat instead of using deadly physical force, if “a completely safe retreat is in fact available” and if doing so “will avoid the necessity of using deadly physical force.”

This exception does not take into account the fact that domestic violence is not limited to a single instance of violence from which a person can safely retreat. It also doesn’t consider that the survivor is reacting not only to the immediate actions, but the entire history of abuse and coercion.

Connecticut’s law does contain an exception for violence that happens in a person’s home; if the assailant does not also live in the home, according to the law, there is no duty to retreat. In Baldwin’s case, given that Brown no longer lived with her, it should seem that even if she feared for her life, Baldwin had no duty to retreat from her own home, where her child was inside.

Domestic violence is more likely to be fatal for Black women. The Institute on Domestic Violence in the African American Community found that, although they comprise 8 percent of the nation’s population, Black women make up 29 percent of all women killed in domestic violence homicides. Black women are twice as likely to be killed by an abusive spouse and four times more likely to be murdered by a boyfriend or girlfriend than white women.

In many cases, however, turning to the police and court system can be even more harmful. Trinidad pointed out that many “have no faith that the court system will offer any relief. Many people have been involved in the court system [before] and had their lives torn apart.”

For instance, in jurisdictions with polices that require officers to arrest someone when responding to a domestic violence call, victims risk being arrested or further brutalized by police. That means, in many cases, that means survivors must devise their own safety plans.

Cindene Pezzell is the legal coordinator for the National Clearinghouse for Battered Women. She also spent five years as an assistant public defender in Philadelphia; during her last year, she represented many abuse survivors in family court. She noted that prosecutors often resist survivors’ attempts to introduce claims of abuse into their defense and raise skepticism about abuse claims.

“That’s where you’ll see questions like, ‘Why didn’t you leave?’ or ‘Why didn’t you call police?’” she said. She also noted that, for many abuse survivors, there is no paper trail, which further fuels disbelief that violence has occurred.

Even when there is proof of violence, prosecutors tend to downplay and dismiss evidence of abuse. If the relationship has ended at the time of the incident, as was the case with Baldwin, the survivor frequently is depicted as a jealous and vindictive ex-girlfriend. (Brown’s family has been quoted in local media making similar claims, along with denying that Baldwin’s life was in danger.)

But if the relationship was still happening, that too can be used against a survivor in court. In California, for instance, Kelly Savage was charged with murder and torture after her abusive husband killed her 3-year-old son. The prosecutor argued that Savage enjoyed the beatings and, because she had not yet left the relationship, was equally responsible for her son’s death. The jury believed this explanation; Savage was convicted and sentenced to life without parole.

In addition, race plays an important factor. “It’s really hard for people to accept Black women as victimized,” Trinidad stated. “In my experience in the criminal court system, Black women are inherently questioned and inherently distrusted. The system and the players don’t find them as credible.” The most recent statistics on imprisonment seem to back Trinidad’s observations: Black women are up to four times more likely to be imprisoned than white women. However, just as there is little data on the number of domestic violence-related convictions, there is nothing readily available about conviction rates of Black women claiming self-defense.

Police, prosecutors, and courts already have practices to interview people who have experienced trauma, Pezzell pointed out. Many jurisdictions use such techniques when interviewing police officers who are involved in shootings, for instance, or abuse survivors who are filing charges against their partners. But these practices and techniques have largely been disregarded, she said, when abuse survivors are the ones on the defense.

In her time as public defender, Pezzell has represented abuse survivors accused of violating civil protection orders, a misdemeanor that is adjudicated in family court. Each time, she recalled, she informed the prosecutor that her client was a battered woman; each time, the prosecutor ordered an investigation before proceeding. If the investigation turned up findings of abuse, the prosecutor would sometimes reduce the charges or dismiss them altogether.

Pezzell similarly urged police and prosecutors to investigate allegations of abuse for self-defense claims. “It can take some time, but it will have a better end result,” she stated. She also advised that they use trauma-informed interview techniques rather than re-traumatize the survivor with accusatory—and often hostile—interrogations.

At the same time, she said, domestic violence service providers, such as social workers and nonprofit agencies, need to support survivors facing prosecution. “We need to make sure that the stories of these survivors don’t disappear because they’re facing charges,” she said.

Cherelle Baldwin’s trial begins on Monday. It will be up to Baldwin and her lawyer to convince all 12 jurors that she feared for her life, and that she should therefore be acquitted of her charges on self-defense grounds. But she may face an uphill battle in the coming weeks.

As Trinidad said, “It’s hard for people to accept that a woman could defend herself using lethal force against a man or that it’s necessary in any way.”

Editorial Law and Policy

The Next Supreme Court Justice Should Be Another Woman of Color

Jodi Jacobson

We need more justices with deeper roots in different communities and a broader worldview than white male candidates from Yale or Harvard, ones who are not devoted to the inevitable blind spots of a group of men who lived more than 200 years ago.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

To fill the vacancy left on the Supreme Court by the death last weekend of Associate Justice Antonin Scalia, President Obama will nominate a new justice. That nominee should be a woman of color.

The thought that Obama will pick another justice has sent the GOP into a tizzy. Senate Majority Leader Mitch McConnell (R-KY) and others in the party are ignoring history and the Constitution to argue vehemently that Obama doesn’t have the authority to nominate anyone because it’s an election year. Instead, they say, that nomination should be left to the next president, a claim Obama has rightly swatted away.

This fight is, in reality, reflective of broad conservative efforts to hold onto a power structure set up two centuries ago by white males who didn’t just ignore, but had no concept of the rights of women or people of color. We need judges with broader perspectives, ones that are not unthinkingly devoted to a concept of America or of rights written by men who, no matter how otherwise brilliant, were not considering “all the people” when they wrote the Constitution.

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The battle over this nomination is part of a longer-running struggle between the GOP and Obama. In January, long before Scalia died, the GOP-controlled Senate, egged on by the Heritage Institute, declared a blockade of sorts—a Senate work stoppage if you will—on confirmations of Obama’s judicial nominees. Under McConnell’s rein, the approval rate of federal judges has been slower than any period since 1969.

This political jockeying is also rooted in two long-running and intertwined debates about how the Constitution should be viewed and who gets to interpret it.

On one hand are the proponents of so-called originalism, the argument that the Constitution is a fixed document subject only to the most literal interpretation. On the other are those who see it as a living document, through which American jurisprudence, concerned as it must be with issues not previously foreseen and the rights of those not previously recognized, is built and sustained by the values on which the Constitution was based.

This is a false dichotomy that, I believe, hides a deeper struggle being waged by a white male establishment aligned with the wealthy and with corporate interests that, despite their collective power, are nonetheless threatened by rapidly changing demographics and a resurgence of collective organizing by progressive movements.

Originalists—often synonymous with conservatives—claim they want judges who won’t “legislate” from the bench. But all judges interpret the law; it’s what judges do. They have one job, and they inevitably bring with them their views of the law, its interpretation, and what came before it. What conservatives really want are judges who will decide cases favoring an outcome aligned with their own interpretation of a given issue, especially with regard to elevating corporate personhood, delegitimizing female personhood, and allowing restrictions on voting rights.

In fact, conservatives’ most revered hero, Justice Scalia, was among the most activist of activist justices. As Adam Cohen, a lawyer and former assistant editorial page editor of the New York Times, wrote in 2005:

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution’s plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Justices are not immune to bias either. We’ve already seen the most self-proclaimed “originalists” make up their own facts and use their own lenses through which to see and interpret the law. Scalia famously—but erroneously and shockingly—claimed that Black college students “couldn’t make it” in competitive universities. This was not based on fact, data, or personal experience; nor on an understanding of race, poverty, and the educational system. He likely arrived at his assertion through an amalgam of conservative talking points, internal bias, and intellectual laziness about the realities faced by people outside his circles and ideologies.

Similarly, Justice Anthony Kennedy either decided on his own, or is so taken with the mythology of the far right, that he wrote an opinion in a reproductive rights case proclaiming that most women have regrets about abortion, a statement that is not only right out of the anti-choice movement’s playbook, but has been widely refuted by scientific evidence.

So even while decrying “bias” and “empathy,” the right knows—and, indeed, depends on the fact—that judges’ thinking can be influenced by ideology and unproven claims. Otherwise, there would not be a years-long effort underway to influence Kennedy’s thinking on abortion leading up to cases like Whole Woman’s Health v. Hellerstedt.

The GOP is disgruntled not so much about literalists versus activists, but that a president they’ve worked for eight years to discredit gets to nominate another justice—one who is more likely than not to be someone the president feels will interpret the law fairly and with real people in mind. That’s why McConnell is holding up all the other appointments as well.

And that is the second part of the struggle underway: representation on the Court, and whether there is value, as Obama has asserted, in a judiciary that “looks like America.” Obama, and others, have argued that empathy and real-world experience are important qualifications in a judge, and that the courts should play a role as a “bastion of equality and justice for [all] U.S. citizens.” And while this administration waited far too long to begin nominating judges, to date, those nominated and confirmed have indeed made the judiciary look more “like America” than ever before.

In a 2014 New Yorker article, Jeffrey Toobin wrote:

Obama’s judicial nominees look different from their predecessors. In an interview in the Oval Office, the President told me, “I think there are some particular groups that historically have been underrepresented—like Latinos and Asian-Americans—that represent a larger and larger portion of the population. And so for them to be able to see folks in robes that look like them is going to be important. When I came into office, I think there was one openly gay judge who had been appointed. We’ve appointed ten.”

Toobin further noted that 42 percent of Obama’s judgeships have gone to women, compared with 22 percent of George W. Bush’s judges and 29 percent of Bill Clinton’s. Thirty-six percent of President Obama’s judges have been people of color, compared with 18 percent for Bush and 24 percent for Clinton.

This, I believe, is what the right most fears: Judges who represent a greater diversity of experiences and views, and who have roots in different communities, will interpret laws with a greater understanding of their effects on real people. And that would threaten the very foundation of the house that white men built, upon which the claims of originalism appear to be based.

History provides a sense of what is at stake. Well over 200 years ago, from May through September 1787, an esteemed group of men meeting in Philadelphia collaborated on writing the Constitution of the United States. The majority of the 55 men attending the Constitutional Convention became signatories to the document, and the thinking and writing of many others contributed to its development, some of whom, like George Washington and Thomas Jefferson, are considered the Founding Fathers of this country.

Two years later, the U.S. Congress passed the Judiciary Act of 1789, thereby fulfilling Article III of the Constitution, which placed the judicial power of the new federal government in “one supreme Court, and in such inferior Courts” as Congress deemed necessary. The first Supreme Court was composed of six justices, a number later expanded to nine justices to accommodate a growing federal judicial system.

Apart from their shared role in history and the fact they were men, the signatories to the Constitution also had other things in common: They were all white Protestants.

From the beginning, the Judiciary Act and the judiciary that resulted did indeed reflect a certain America: the one seen by the men in power. In laying out the roles and responsibilities of justices of the courts, the word “he” appears 23 times. This is no accident. The U.S. Constitution was written by white Protestant men for white Protestant men, albeit while recognizing the religious freedom of other white men.

These documents were written at a time when white men were still killing and taking over the lands of Native Americans, and when slavery was the foundation of the U.S. economy. At least some Founding Fathers were slave owners, and the notion of basic human rights for Black people or other persons of color simply did not exist.

Women were not counted as people either, at least not in any political sense. As wealthy white men wrote declarations and constitutions, their wives were meant to bear and raise the children of, run households for, and support any and all needs of their husbands and fathers. They could not vote, rarely owned property, and were dependent on men for status and income.

By and large, and until recently, this type of “originalism”—white Christian male as the normative standard—has remained largely unchallenged. The vast majority of justices have been white Christian males, predominantly Protestant with a few Catholics sprinkled in. As the slideshow below makes clear, that did not change even slightly for well over 100 years.

[slideshow_deploy id=’74112′]

The first Catholic justice, Roger B. Taney, was appointed in 1836. It took until 1916 before the Court had its first Jewish justice, Louis Brandeis, another 50 years to nominate Thurgood Marshall, the first Black Supreme Court justice, in 1967, and 14 more years from that to nominate Sandra Day O’Connor, the first female justice. The second Black justice, Clarence Thomas, was not nominated until 1991.

Today, nearly 51 percent of the U.S. population is female, a majority demographic. And the non-Hispanic white population, as traditionally defined by the U.S. Census Bureau, is an increasingly small share of the population. With the death of Justice Antonin Scalia, the Court is now comprised of four white men and one Black man, all of whom range in age from their early 60s to late 70s, and three women justices, two of whom are also white. Only four justices in 112 have been women.

The Supreme Court has therefore never been representative of the broader population of the country. In general, it has continued to represent the “original America” as seen by its authors—which, again, was itself never a true picture of the United States.

Given this history, it’s also fairly clear why there is a huge chasm between constitutional originalists and those who view the Constitution as a living document, one with consistent values that nonetheless have to be applied to new and different norms and questions. If you are a man or a person of wealth whose needs, rights, and economic interests fit comfortably under that original interpretation of law, you don’t need to reflect on the meanings or implications for other people of your judgments and decisions.

If, on the other hand, you recognize that there are historical injustices that were never even seen as injustices, and therefore never contemplated at the time of the writing of the Constitution, you probably believe some interpretation is necessary. If you thought a woman’s role was to bear children and be a homemaker, you didn’t need to protect or interpret her rights in a constitution. The freedoms, needs, aspirations, and rights of non-white, non-male persons simply were not considerations in that original document. Securing the rights of women and people of color, among other groups, therefore requires interpreting the values that underlie the Constitution to support them.

To be sure, there are some people of color who themselves are aligned with ultra-conservatives and the claims of originalism except when it doesn’t suit their purposes. One of them is Supreme Court Justice Clarence Thomas. But as Michael Eric Dyson noted on NPR’s Morning Edition:

[W]e have, for instance, on the court now Judge Clarence Thomas, an African-American man to be sure but not committed to the fundamental practices as they have been historically adjudicated and put forth by civil rights communities and other African-American people. So the first qualification is a profound legal commitment to practices of justice. But certainly, that does make a difference in terms of the identity of the person who’s being chosen for that spot.

The current composition of the Court is unacceptable if only based on sheer demographics and the fact that there are many eminently qualified candidates of color for the bench. But it is especially so given the reality that every single decision under consideration by the Supreme Court now, in the recent past, and in the near future has disproportionate implications for women and people of color.

Profound questions are being asked. For example: Who can vote, under what conditions, and facing what kinds of obstacles placed in their way by those who’d rather stifle their voices and de-legitimize their votes? What is “religious freedom” and how freely should this ill-defined and vague notion be used as a means of denying people health care and the rights of women as persons?

Do the people whose bodies contain reproductive organs have a fundamental right to self-determination or are their bodies simply vessels for the production of other bodies even when against their will? Who gets to decide the meaning of “undue burden” in exercising a right, whether that means accessing reproductive health care or exercising the right to vote? (And in all honesty, what would Justice Kennedy know about undue burdens in any case?)

What exactly is “discrimination,” and how hard do you have to work for how many years to prove it? Who gets paid for what, when, and under what conditions? Do government agencies charged with protecting our health and the environment on which we all depend have the authority to actually protect our health and environment? Is reproductive health care actually health care? Is a corporation (or soon a robot?) a person with rights equal to or superseding those who are living, breathing individuals?

This is the real fight. We need more justices with deeper roots in different communities and a broader worldview than white male candidates from Yale or Harvard, ones who are not devoted to the inevitable blind spots of a group of men who lived more than 200 years ago. We need justices who offer perspectives on the facts and realities of people of color and women. And yes, the extent to which they can empathize with people and experiences outside of themselves matters a great deal.

There are more than a few female candidates of color, each of whom are more than capable and qualified to be Supreme Court nominees. Among them are Kamala Harris, attorney general of California, Loretta Lynch, U.S. Attorney General, Melissa Murray, a professor at UC Berkeley, and Jacqueline Nguyen, a judge on the Ninth Circuit.

Moreover, we should not stop there. Since women now make up the majority of this country’s population, we really need, for the very first time in history, to have a majority of women on the Court. Period. This is not about quotas, it’s not about litmus tests. It’s about fundamental human rights, fairness, and the ability to see the world as it really is, and not just from a cloistered building protected from protest.

The right will be aghast at this idea. And truth be told, so will more than a few self-declared liberal men. When you perceive yourself as righteous in every way and the center of the universe, you don’t tend to think of other universes. Because their own needs were reflected in the documents, I am guessing none of the founders lay awake at night thinking about the future implications of the Constitution for women and people of color. I am guessing reproductive and sexual justice, and expanded voting rights for all people, were not of immediate concern and that existential threats like climate change were not remotely in the realm of possibility given that cross-state pollution and fossil fuels came much later. For these and other more expediently political reasons, I don’t think that the four “conservative” justices on the Court lay awake thinking of these things either.

We need people who do think of these things and who can apply core values laid out by the Constitution, using thoughtful and considered judgment, to the issues of the day.

The next nominee—in fact, the next two—should be women of color. Because original intent or no, there are a majority of people out there who do not look like—think, live, or enjoy the privileges of— the Founding Fathers. They have the most at stake in the coming years, and they deserve, finally, to see a court that looks more and more like this America.