Ernst Freund Distinguished Service Professor of Law and Ethics, University of Chicago
What are people able to do and to be? And are they really able to do or be these things, or are there impediments, evident or hidden, to their real and substantial freedom? What about their environment, material, social, and political? How has it supported or failed to support their capacities? In particular, how have the basic constitutional principles of a nation, together with their interpretation, promoted or impeded people's abilities to function, in some central areas of human life? Does the interpretation of constitutional entitlements yield real abilities to choose and to act, or are the document's promises more like hollow verbal gestures? This lecture maps the decline of this "capabilities approach" in the recent jurisprudence of the U.S. Supreme Court, focusing on a group of cases from the 2006 Term, involving employment discrimination, abortion, and affirmative action. Nussbaum argues that a type of obtuse formalism is in the ascendancy on the Court, displacing a realistic and historically informed focus on what people are actually able to do and to be.