Donald Trump has nominated Neomi Rao to replace Brett Kavanaugh on the Court of Appeals in the DC Circuit. The announcement prompted a notable spike in online talk about dwarf-tossing—that’s right, the practice of throwing little people like a shot-put.
Dwarf-tossing has been banned in some US states and parts of France for offending human dignity, and a Nov. 16 post on Mother Jones by Stephanie Mencimer called Rao a “staunch defender” of this pastime: “Rao considers these laws an affront to individual liberty that fails to recognize the right of the dwarf to be tossed,” Mencimer writes.
Rao, currently administrator of the Office of Information and Regulatory Affairs, wrote about the controversial “sport” repeatedly while she was a professor at George Mason University law school. Her writings offer “a pretty good indication of where [Rao] will come down as a judge, not just on dwarf-tossing bans, but on some of the nation’s most contentious issues,” including same-sex marriage, says Mencimer. By reading Rao on dwarf-tossing, we can predict that she will be preoccupied with “all the conservative bugaboos.”
Conservative and liberal commentators seem to agree that Rao’s dwarf-tossing arguments illuminate her worldview and judicial philosophy. But not everyone agrees on whether Rao’s position is defensible or being genuinely represented by the press. For example, R Street Institute policy fellow Shoshana Weissmann in Reason on Nov. 26 noted, “If you only read about Rao’s work in Mother Jones…you might have thought that Rao simply has a niche affinity for dwarf tossing.”
Rao has argued in two law review articles and a post on the conservative law blog Volokh Conspiracy in 2011 that banning dwarf-tossing is problematic because it’s the kind of legal situation that pits cultural values against constitutional rights. Viewed in that light, she didn’t write a defense of the dwarf’s right to be tossed so much as a defense of an individual’s liberty to make personal determinations of dignity, according to Weissmann, which extends far beyond the narrow issue of throwing little people around for sport.
Rao’s writings pointed to the fact that it was a little person who challenged the ban by mayors in France because it robbed him of his ability to earn a living, and that earning his way allowed him to lead a dignified life. The concept of “human dignity” in the law, which Rao says is a value judgment premised on culture, interfered with personal liberty protections that are constitutionally enshrined.
This creates a clash between rights and values. “The…case demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices,” Rao wrote.
What makes for a dignified life is not necessarily agreed upon by all people, Rao said. When considered in the context of religious freedom, for example, Rao’s angle becomes less difficult to comprehend and seems somewhat less farfetched: European leaders’ resistance to Muslim women’s religious headgear—in the name of protecting women’s dignity—similarly pits cultural values against individual freedoms, she said. “The debate focuses little on what Muslim women think about the full veil or why some of them wear it in public,” according to Rao. “Instead of associating dignity with religious choice, those who would ban the veil treat dignity as a different social ideal—one that measures up to majority standards of individual self-expression.”
In Rao’s view, “the issue is not whether laws prohibiting dwarf throwing, burqa wearing, prostitution, or pornography may be desirable social policy.” Rather, these examples “demonstrate that the conception of dignity used to defend such policies is not that of human agency and freedom of choice.” A particular moral view of what dignity requires is imposed on individuals, forcing them to observe certain social norms approved by the majority.
Similarly, Weissmann points out, Rao’s criticism of the the US Supreme Court’s support for same-sex marriage is that the law isn’t policy-based. Instead, she disputes the court’s preoccupation with dignity as opposed to rights. In Rao’s view, a right to same-sex marriage, rather than a respect for ”the dignity of having your personal relationships recognized by the federal government” makes a more sound legal basis.
If appointed by the Senate, it’s unlikely Rao will face the specific question of dwarf-tossing on the DC Circuit bench. But she probably will apply the reasoning she’s previously articulated to support the right of individuals to personally determine what it means to lead a dignified life. Whether or not you agree with Rao’s reasoning, it’s worth understanding those underlying principles.