Justice Ginsburg maintains her position that the deadline to ratify the Equal Rights Amendment has passed

Litigation concerning the ratification of the ERA is pending in federal court in Alabama, Massachusetts, and D.C.

|The Volokh Conspiracy |

Earlier this year, Virginia purported to ratify the Equal Rights Amendment. According to ERA supporters, Virginia was the 38th state to ratify. As a result, 3/4 of the states have voted to ratify, and a new 28th Amendment should become part of the Constitution.

The status of Virginia's ratification is now pending in several courts. Alabama, joined by Louisiana and South Dakota, filed suit in the Northern District of Alabama. They argued that the ratification deadline has already passed. The Office of Legal Counsel has weighed in, and also concluded that the deadline has already passed. Another suit was filed in the District of Massachusetts, arguing that the ratification is proper. And Virginia, joined by several other states, sued in the District for the District of Columbia to order the Archivist of the United States to certify the 28th Amendment.

This issue will almost certainly go to the Supreme Court. Yet, at least one Justice had already opined on it. Last year, Justice Ginsburg said, "I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of states to ratify it."

And today, she opined on the matter again. Here is the report from CNN:

Justice Ruth Bader Ginsburg, a long-time supporter of the Equal Rights Amendment, suggested Monday night that the deadline to ratify the measure as a constitutional amendment has expired and that the decades long effort must start anew.

"I would like to see a new beginning," Ginsburg told an audience at Georgetown University Law Center.

"I'd like it to start over," she added.

Ginsburg was responding to a question from the moderator of the event, Judge M. Margaret McKeown of the 9th Circuit Court of Appeals, who asked whether there would ever be an Equal Rights Amendment on the federal level.

The ERA would ban discrimination on the basis of sex and guarantee equality for women under the Constitution.

Ginsburg's comments seemed to throw cold water on a recent effort by Virginia and other states who argue that after Virginia became the 38th state to ratify the amendment last month, the states had met the threshold necessary to change the Constitution.

Nodding in response to the question about the dispute, Ginsburg said "there is too much controversy about late comers," and she added that Virginia's move came "long after the deadline passed."

By all accounts, Justice Ginsburg long ago made up her mind on whether the deadline to ratify the ERA has passed. And she continues to publicly voice that view, even as litigation is pending in the lower courts.

There is little chance ERA supporters would file a motion to recuse Justice Ginsburg. (Such a move would be an apostasy). But I don't know how RBG could approach this case neutrally.

Update: ABA Journal offers more of Ginsburg's remarks:

"I would like to see a new beginning," Ginsburg told her interviewer at the event, Judge M. Margaret McKeown of the 9th Circuit U.S. Court of Appeals at San Francisco. "I would like to start over. There is too much controversy about latecomers [like] Virginia long after the deadline passed. Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, 'We have changed our minds'?"

She also seems to suggest that states can rescind their ratifications.

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  1. I think recusal is silly. Justices are not idiots. Scalia famously opined about a whole bunch of constitutional issues. That doesn’t mean he didn’t read the briefs or couldn’t theoretically change his mind.

    1. More BS special pleading.

      I expect more of this in the future.

    2. Commenting on general constitutional issues is one thing. But I’m not sure we want Justices publicly commenting on specific cases in the lower courts.

      1. Justice Ginsburg has a habit of speaking publicly when she shouldn’t.

        If she was going to recuse herself because of her inappropriate public statements showing that she has a bias on a topic (or if liberals would ever call for her to do so) she would have recused herself on most anything having to do with Trump – and that didn’t happen.

      2. I didn’t listen to the entire interview, but based on the quotes selected, my take is that she did not publicly comment on a specific case. Rather, she expressed her personal preference about what should happen.

    3. Are there examples of Scalia 1. Commenting on a specific issue as clearly as this when 2. He had not previously expressed that belief in a judicial opinion? Serious question: I’m not saying he never do, and I’d be interested to read about any examples you have.

      1. I don’t see why that matters. Bias is bias. If having an expressed opinion about a legal issue is bias, it wouldn’t make it not bias just because a justice had decided a previous case.

        But yes, Scalia had said that gay marriage is not constitutionally required before any gay marriage case reached his Court.

        1. Logically it shouldn’t matter but “studies have shown” that people are much less likely to change their mind once they have publicly stated an opinion.

          1. I disagree. I think if you are really, truly biased instead of just being a person with opinions, you keep the bias secret so you can stay on the case.

            The fundamental problem here is people don’t understand that having a jurisprudential opinion is simply not “prejudging” a case or being biased against a litigant.

      2. When a lower court ruled that “under God” in the Pledge of Alliagance was unconstitutional, Scalia made a public statement to the effect that the decision was silly. That decision made its way to the Supreme Court. Scalia recused himself at the request of the Plaintiff, Michael Newdow.
        However, Scalia has said SCOTUS is different and that every Justice has opinions on many of the issues before the Court, indicating that recusal may be appropriate, but is not required. I think I agree with him although I also think it is probably a good idea for justices to refrain from comment on matters that may come before the court. I think the Newdow case was a bit different from the ERA because Scalia was commenting, not on a general issue, but on a particular case. That is, he wasn’t just saying that “under God” is Constitutional; he was saying specifically that this particular case was wrongly decided.
        RBG’s opinion here is on a general issue. Any judge who has taught law in any context has publicly commented on issues that will come before the court. Those issues may not be controversial, but they may be contested at some point. The line drawing issues can get tricky, is recusal necessary if the statement is broadly accepted? if the issue has risen in the particular context likely to be litigated? if a case has been filed but is not specifically referenced? One thing that is clear: the decision to recuse is made by the justice being recused and there is no review by a higher authority

        1. I think a better policy would simply be to never recuse except for actual personal bias. Seriously. We pay these people big money to have opinions about jurisprudence. And it does the public a great deal of good when they speak in public.

    4. I agree that recusal is silly (except where there is a personal interest.) All that stuff in confirmation hearings is just an excuse for dodging questions. As soon as I read the headline to this Article, I recognised that Justice Ginsburg was expressing an opinion on something that might come before her as a judge, and I instinctively looked up to see if the sky was falling. It wasn’t.

      I think it would be prudent for a judge to make it clear that they are expressing an unbriefed preliminary view, but pretending that they are living in a bottle, unaware of anything, until they don their robes and turn up in court, when they suddenly turn on their brains, eyes and ears is nonsense.

      The fact that a judge may have previously expressed the view that, say, “Roe v Wade was obviously rightly decided / wrongly decided” doesn’t show they are biased – it just shows they have already thought about it. Which we all knew anyway.

  2. Article would have been better if it explained why the deadline is considered to be passed. I’m merely a humble amateur law enthusiast and off the top of my head I neither know if a deadline had been written in the text of the ERA or if its just a matter of case law that such things expire after a brief period.

    1. ” Beginning with the Eighteenth Amendment, save for the Nineteenth, Congress has included language in all proposals stating that the amendment should be inoperative unless ratified within seven years.”

      Link to Article – Cornell Law School

      1. I agree that, once ratified and certified as such, the proposed Amendment would be inoperative due to the language inserted by Congress; however, to me, this does not mean that the ratification itself is barred from taking place. Article I Section 7 Paragraph 3 seems to make the Congressional wording regarding a time limit ineffective until the proposed Amendment is itself ratified: ratification of the proposed Amendment also ratifies the time limit, making the proposed Amendment ineffective.

        But… what about the Corwin Resolution, which has no time limit?

        1. What about it? The 27th Amendment was first submitted to the states for ratification on September 25, 1789. It was ratified by states in the 18th, 19th, and 20th centuries. (And the 21st century, most recently by Nebraska.) Although there are some scholars who believe that the passage of time makes an amendment stale, there does not appear to be a workable judicial evaluation for where to cut the line off, if Congress hasn’t made that line explicitly. And the ratification of the 27th Amendment is some evidence that there are no time limits unless set forth by Congress. If the Corwin Amendment can get the votes, it will be ratified. (Note that since the Corwin Amendment is drafted prospectively, and relates only to Congress’s power, it is not clear that it would overturn the 13A, even if ratified. Even if interpreted as a retroactive amendment, it would not affect Section 1 of the 13A, merely Section 2.)

          1. The 27th Amendment presents an interesting question for originalists. If an Amendment is proposed in 1789 and finally ratified in 1992, what date is relevant for the “original meaning” ?
            Common sense says 1789, but I’m not sure whether that is settled originalist doctrine.

    2. The original ERA ratification deadline Congress set was March 22, 1979.

      Sometime before the March 22, 1979 deadline, Congress passed, but with less than the 2/3 majority in either the House or Senate (2/3’s being required to send an amendment to the states in the first place) a resolution to extend the deadline June 30, 1982. Oddly, this was then sent to Carter for signature (who signed it) even though the Executive has no role in Constitutional amendments and the Supreme Court appears to have confirmed this in Hollingsworth v. Virginia in 1798.

      During the alleged extended deadline, no additional states ratified the ERA.

      To complicate matters, four states have passed legislation purporting to rescind their earlier ratification – although the Constitution makes no mention of such a capability. As well, South Dakota who ratified the ERA passed a resolution shortly before the first deadline was about to expire declaring that their ratification would expire on the original March 22, 1979 date as they didn’t recognize Congress’ power to unilaterally change the terms of the ERA by extending the deadline after it was presented to the states.

  3. RBG IS A MISOGYNISTIC MONSTER AND A GENDER TRAITOR!!!!!!!!!

    /Prog

  4. The issue may be coming to the Supreme Court, but the Supreme Court has held that such questions are non-justiciable. Moreover, even where the requirements of Article V are blatantly not followed, in the case of the 14th amendment, this has not stopped Congress and the Secretary of State from simply declaring that an amendment is ratified, and it appears such a proclamation “would not be subjet to review by the courts.”

    https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf

  5. Is there a 25th amendment for supreme Court justices?

    Either that or she’s conceding she will be off the bench by the time it is heard. But I will concede that her remarks don’t rise to the level where a Justice would have to recuse, if they are a Democrat.

  6. Here’s the simplest reason it should not be considered passed: amendments should be with wide agreement and with open consideration. If you are changing the rules after it starts, after votes have been made, and have to go to court to “force” it, you have failed in that process.

    End of story. Amendment is by open consideration and approval and is obvious. Not by trickery.

  7. Adopting the ERA would be a sign the Equal Protection Clause jurisprudence is deeply flawed.

    Question: What is there to stop a State from unratifying the Amendment prior to it being declared ratified by 3/4’s?

    1. Several states have unratified the amendment. In order to get to the 3/4 of the states, the argument is that states can’t unratify an amendment.

  8. I don’t know: Isn’t there some sort of exception for recusal for questions that are drop dead obvious? Like, if a Justice has expressed the belief that the Sun rises in the East, and somebody brings a lawsuit predicated on the idea that it rises in the West, do they really need to recuse?

  9. If we are going to have an ERA then it must include everyone, the left and right tails of every distribution of Human Bio-Diversity.

    1. Yep.
      that’s why a simple do-over of the 1972 ERA would not be so simple. Every special interest group would want to pile on, effectively making the constitution unamendable going forward with respect to any particular group’s rights.

  10. Just because she has made up her mind does not also mean that she is not neutral. She could theoretically change her mind – but at the same time, there is nothing new here. The deadline passed. A long time ago. Its pretty cut and dry.

    1. Also, it does not matter whether she recuses herself or not. Or even whether she is on the bench when (if) the case is heard.

      Her words will supply ample persuasive cover for every judge and justice. “RBG, if she were here, would not vote for this…:

      If I were betting, I would bet no circuit split at all on this and that the Supreme Court denies cert. And if they do take it I would bet 8-1 or 9-0 against Virginia. The 1 would be Sotomoyor whose jurisprudence is often motivated by derangement for all things Trump. Just wave a red hat in front of her and she will charge it.

  11. Maybe RBG wants to recuse herself? She’s got views on it, but doesn’t want to be on the judicial record as opposing it? So, she can just recuse herself instead?

  12. The left will probably want to have it re-written anyway. They will want it to include, LGBTT2Q2WFRNHDS………

    1. The right will want to rewrite it to bash gays, agnostics, blacks, atheists, women, Netanyahu-disliking Jews, Muslims, immigrants, and people with advanced degrees.

      Should be a spirited debate. May the better ideas win, and the bigots be stomped into cultural irrelevance.

  13. I honestly do not see the issue here. The Congress put a deadline on passage. And they extended it. The amendment was not ratified.

    My understanding of the process is that you are back to square one. Start over.

    Look at it this way, if there is broad support for this amendment, it will sail through 38 states without a problem. Why the angst about starting over again?

    1. Because they know there isn’t broad support for this amendment, and want to win anyway.

      1. Actually, I suspect it Does have strong support.

        That doesn’t mean there wouldn’t be 13 states that don’t ratify.

        That said, I do think states rescissions should count, because otherwise all amendments that pass Congress are on a one-way street to ratification. That’s a bad idea.

        I also think there should be a time limit, so we don’t have zombie amendments roaming around, waiting for the right moment to strike.

        If I were designing the process I’d put in a time limit – say fourteen years – and allow each state to explicitly ratify or reject the amendment. The amendment would be approved as soon as 38 states ratified it, or the end of the fourteen years if the number of ratifications is three times the number of rejections, i.e. if 3/4 of the states acting ratified it.

        1. If it’s got strong support, rather than strong support in some particular places, it should be relatively easy to get Congress to re-originate it. The very fact that they’ve given up on trying that is an indication that the support isn’t widespread.

          The purpose of state ratification is to confirm that an amendment actually has widespread support. If you ignore recissions, you can see a scenario where one state after another ratifies, and has the ratifying legislators thrown out of office by the people in the next election, and in the end you get an amendment that has been widely repudiated by the voters and never had more than a few states in support of it at any given time.

          A time limit is a good idea, but it’s fine implementing it through to originating resolution. Maybe the sort of thing you’d fold in if you were already amending Article V.

          “or the end of the fourteen years if the number of ratifications is three times the number of rejections, i.e. if 3/4 of the states acting ratified it.”

          So 4 states ratify, 1 rejects, and 45 ignore the amendment entirely, it becomes part of the Constitution? No, I think this is something where you don’t want default acceptance.

          1. rather than strong support in some particular places

            Oh stop that nonsense. As usual, you value a kind of geographic diversity, while seeing no value in any other kind.

            Anyway, isn’t it opposition in some particular places that kills it? I mean if most of the southern states don’t ratify, along with a handful of others, the amendment goes down. That’s idiotic.

            At some point, Brett, you have to learn that voters, not acreage, is what matters in a democracy (or a republic, if you’re about to make that moronic point). If 80% of the voters support an amendment it ought to go in, and the fact that CA voters are 90% in favor, and AL voters only 40%, for example, shouldn’t matter in any rational system.

            1. The point of states isn’t to preserve ‘geographic diversity’, moron, it’s to spread the balance of power across more than one dimension. Lots of problems with our system are due to defaulting to geography (see: public schools) because it’s easy, not because it’s important. But just because geography isn’t important doesn’t mean the balance of power drawn along those lines isn’t.

              It’s so weird that even with literal hitler in the white house, progs can’t help themselves from trying to amass more power in dc.

              1. You could’ve made your point without the childish name-calling. Do you not understand the meaning of the term ‘civil’ which the owners of this blog have requested you to be?

              2. It’s not the least bit weird: Literally Hitler is just rhetoric, and the people using it know quite well that it isn’t true. The problem is that, while the people dishing out the Koolaid know it’s poison, the people drinking it don’t. They take it seriously.

                Every Republican President since, literally, Wendell Willkie, has been likened to Hitler by the Democrats. I suppose they’d have started doing it sooner, but everybody would have been all, “Who’s Hitler?”

                1. Every Republican President since, literally, Wendell Willkie, has been likened to Hitler by the Democrats.

                  I challenge you to find where the Democrats compared Eisenhower to Hitler.

                  Of course, there were people calling him a Communist,, but they were over on your side.

                  Oh, and a few people saying dumb things about Bush II does not equate to “the Democrats,” except in your conspiratorial fantasies.

              3. Not a question of “amassing more power in DC.”

                The issue is how to decide how to make policy decisions that have nationwide effect.

                It’s fine for things that only affect local or state populations to be decided locally or statewide. But when we deal with national issues – and nothing is more national than an amendment – then the decisions ought to be made by the voters of the nation, with all voters having an equal voice, rather than by a bizarre system that gives different voters different power, based on the accident of which side of a state line they happen to live on.

                1. Why just worry about states? What about Congressional districts?

                  Did you know that the average Democratic district has less citizens than the average Republican District? By quite a substantial margin?

            2. What you don’t get is the WHOLE POINT of various checks and balances was to PREVENT overwhelming support in one area from forcing shit on everybody else. If 99.999% of people in one area support something, but it only has 25% in a bunch of other areas, but still comes out to 50% + 1 vote overall… That’s probably a pretty dumb thing, which is why 75% are against in most areas.

              In short, for radical shit to pass you need to have popular support, AND regional support. There’s nothing wrong with setting a high bar for contentious issues.

          2. So 4 states ratify, 1 rejects, and 45 ignore the amendment entirely, it becomes part of the Constitution? No, I think this is something where you don’t want default acceptance.

            It’s not that hard to have a vote. If the state can’t find time in fourteen years then it doesn’t get a voice.

            The objective is to avoid situations where the amendment can be blocked from coming to a vote by a minority party in the legislature. The job of legislators is to vote. So make them do it.

            1. “At some point, Brett, you have to learn that voters, not acreage, is what matters in a democracy”

              Right, which is why the US should vote tomorrow to annex Canada; We’ve got more votes than them, so we’re entitled to.

              Bernard, it’s quite conventional to care where the votes are cast, to object to these people over here imposing their will on those people over there. The US is a heterogeneous federation of states, the sort of strict majority vote that you advocate, allowing a handful of states to rule the nation because their politics are monolithic would be a recipe for tearing the US apart.

              “The objective is to avoid situations where the amendment can be blocked from coming to a vote by a minority party in the legislature. ”

              You’re just transforming the situation where a minority blocks ratification, into a situation where a minority can effectively force ratification, by requiring an affirmative vote against the amendment. If you want to amend the Constitution to mandate a vote by state legislatures, that’s one thing. But treating a failure to vote as authorizing a change in the rules empowers an obstructing minority to alter things.

              1. Perhaps a revived amendment effort would be worthwhile, exposing America’s bigots and clingers while giving obsolete right-wingers something to rant about as they await replacement.

              2. The fact that the progtard states are trying to force their will on the rest of country because they have a very SMALL edge in popular vote is exactly what is pushing the nation towards civil war.

                Nobody is stopping California from doing almost any stupid shit they want… They could have single payer healthcare tomorrow! The thing is most states and their people DO NOT want this stuff. If they didn’t try to force their will on everybody else, we’d all be a lot more chill.

                1. There will be no civil war.

                  As is customary, just a bunch of can’t-keep-up clingers muttering bitterly about all of this damned progress and wondering why people who don’t look like them are being treated decently these days.

                  Keep pining for the days when women couldn’t vote or own property, wife-beating was no big deal, gays were treated like dirt and criminals, contraception was prohibited, and black men knew to lower their gaze in the company of white women, though. It’s a great look for you, vek, as you await replacement.

                  1. Ugh. Keep telling yourself that dildo.

                    Sane, productive men are usually really reserved, and put up with a lot of shit… But when the breaking point comes, they will kick peoples asses so heard you won’t believe it. If you’re too stupid to see that this country is heading towards a violent civil war if we don’t have a major change of direction… Well I hope you have a suit picked out for your funeral, because people like you will be up against the wall pretty quick when sane people take over again.

                2. So the minority gets to force its will instead?

                  Because they live in more states than the majority does? That’s absurd.

                  1. Seems to have worked in 2016…

              3. allowing a handful of states to rule the nation because their politics are monolithic would be a recipe for tearing the US apart.

                Brett,

                Right now we allow a minority of the people to rule the nation, and doing a pretty damn good job of tearing the country apart. You keep talking about “states” as though they were sentient beings. They are not. The “states” wouldn’t rule. The voters would.

                1. The Founders explicitly rejected majoritarian democracy.

                  1. Which is relevant to what?

                2. As I said, if 99% of people in one area like something… But almost nobody else anywhere else does… Is that perhaps not a sign that there’s something wrong with that thinking? Or that it’s a short term glitch on the road into the future that will fade there too?

                  They BALANCED a system that is largely democratic, with one that also protects minority rights… But only a little bit. Keep in mind nobody is going to win the presidency with 25% of the popular vote, because they could never win the EC with that little. But a couple percent off, they can. Which was on purpose.

                  And you probably don’t know this, but senators were originally appointed by the state legislatures, NO VOTE by the public, because they wanted them to represents the states interests.

                  You just don’t get the complicated, and superior, system of checks and balances they envisioned. As I said, it allowed mostly democratic outcomes, but throttled things a little bit so it wasn’t pure mob rule. There was wisdom in the way things were originally setup, some of which we’ve ruined since then.

              4. The US is a heterogeneous federation of states, the sort of strict majority vote that you advocate, allowing a handful of states to rule the nation because their politics are monolithic would be a recipe for tearing the US apart.

                The US is heterogeneous in lots of ways, Brett, but the states aren’t particularly heterogeneous. The borders are mostly arbitrary, the result of some political haggling and whatnot, and only a few ever existed as sovereign entities. They have no unique cultural, linguistic, religious, political histories. If you think Kansas, Nebraska, and Oklahoma are distinctly different places you’re nuts. Or the Dakotas… Even states like Massachusetts and Ohio, say, have more in common than Germany and France.

                Now I will grant you that there are huge differences in political points of view. But so what? Why should we privilege minority viewpoints because of where those holding them happen to live?

                And for all the claims about “not imposing shit,” that’s exactly what the minority does. They imposed Trump. They imposed McConnell blocking Garland. They imposed foolish tax cuts and inhumane immigration policies.

                So forget it. It’s insane. The country is coming apart, and the system bears a lot of the blame.

                Of course where there is heterogeneity – you hate saying diversity – is in ethnicity, among other things. That’s way more heterogeneous than the states. But you would rail at the idea that, say blacks or Hispanics should be given disproportionate voting power so whites couldn’t impose their will on them. So you’re all for it when it suits you. Not so much otherwise.

                1. Blacks and Hispanics are given “disproportionate” voting power…

                  IE, majority minority districts.

                2. You just don’t get it man…

                  You’re complaining about a couple percent difference in a nation where most people don’t even bother to vote.

                  If Trump had won 50% +1 of the popular vote, but Hillary had won the EC would you be bitching about the EC? I think not. You’d be stoked that those “horrible people” in the midwest didn’t beat out the enlightened people in CA thanks to the EC!

                  Different states have legitimately different interests, and for this reason it is not a bad thing to have this split. Unfortunately I am sure the Dems will win back the presidency at some point, but to have a couple cycles where the EC held them in check is not a bad thing.

                  Another thing idiots like you don’t get is that IF it was a true national popular vote, then the race would be carried out differently. California still has more conservatives than any other state because of its population… Many don’t bother to vote because it doesn’t make a difference. I live in a similar state. If it was pure popular vote I would have voted R in previous national elections instead of for Gary Johnson etc. SO you don’t even really know who would have won a popular vote based election to begin with.

            2. There is a federalism problem there, no? You cannot have a situation where the Federal Government compels a state legislature to vote on a constitutional amendment. I don’t think there is a precedent for doing that.

              1. You could, if you appropriately amended Article V. I took that to be what we were discussing.

                1. Yeah, I was only talking about the ERA. It just seems to me that the deadline passed. Ok, you’re done. Start over again.

                  This trying to game the system shit with constitutional amendments is wrong.

        2. Sorry Bernard,

          There isn’t really “strong support” because people don’t know what it means.

          Let’s spell it out for you. If you can’t discriminate based on gender, then there is no reason to have separate male and female prisons or jail cells. By Constitutional law, you will not be able to separate them. You MANDATE mixing male criminals with female criminals in general populations in prisons….

          Just think about what that means. Putting a bunch of rapists in a confined space with a bunch of women.

          1. A.L.,

            You MANDATE mixing male criminals with female criminals in general populations in prisons….

            There may be reasonable arguments against the ERA.

            That’s not one of them. Stay in your armchair.

            1. That’s what you’re arguing for with the ERA.

              We don’t have separate jails for black people and white people.

              The ERA would basically eliminate having separate jails for women and men.

    2. The states that ratified the amendment prior to the original 1979 deadline did so knowing that there was a deadline.
      Because none voted on an amendment without a time limit, we cannot know whether any of the first 35 legislatures would have approved of an amendment without a time limit.
      Maybe. One could speculate. But that was not the resolution before the state’s legislatures, so speculation isn’t an affirmative vote.

  14. RBG is well aware that abortion and homosexuality aren’t covered by the constitution either, but that didn’t not stop her ruling her desired outcome.

    Why are we still pretending that this is anything but use of raw power?

    1. Ah yes, the ‘everyone secretly agrees with me but some lie about it’

  15. The amount of affirmative action bullshit and de facto quotas etc that already exist without this is a hellscape that is screwing up all kinds of stuff… With an actual amendment it would really be the end of freedom of choice and freedom of association in an ever broader portion of society.

    Something like this should never pass.

    1. That, exactly. Even with the ERA defeated, we ended up with most of the worst case scenario the amendment’s opponents were warning of, and it’s proponents dismissed as irrational fear mongering. (Before going on to demand that the 14t amendment accomplish it!)

      Nobody knows what the courts would do if handed the ERA, just that they’d go further than they have already without it.

      1. Absolutely equal representation in all fields! Irrespective of how many women even study in certain fields… Equal pay! Even if women work less hours in salaried positions…

        Etc etc etc. It’s bad enough already.

    2. Wouldn’t an equal rights amendment actually make affirmative action for women more difficult? It would theoretically subject distinctions based on sex to strict scrutiny.

      1. You’d think that. You’d think the 14th amendment would make racial preferences more difficult, too.

      2. Yup. In theory, in a sane world… But not in this one.

  16. I think Ginsburg is smart enough with her comments that it’s not a direct comment on the merits. She notes that the deadline passed, that it’s an area many believe the deadline controls, and that she would like to see them start over. She didn’t say that she believes the deadline that has passed controls.

  17. I agree that it might be best for Justice Ginsberg not to comment on a matter very likely to reach the Supreme Court.

    But I agree with the opinion she gave. A constitutional amendment is supposed to reflect broad support and near-consensus. An attempt to resurrect a failed amendment decades after its deadline passed and even after some previous ratifies attempted to rescind their ratifications, would create a stigma of illegitimacy that would haunt it and might be counterproductive to its supporters’ purposes.

    And I welcome the fact that Justice Ginsberg is starting to think about how the other side might see things, and about the need for a commitment to a common procedural legitimacy that transcends and can be shared across party lines and ideological commitments.

  18. What difference would it make?

    I’m not being snarky, this is a serious comment. The Equal Protection Clause of the 14th Amendment is written so broadly that, read literally, it appears to ban pretty much all possible forms of discrimination, including ridiculous cases such as against criminals. And every case I’ve read in the last 60 years appears to read it just about that broadly — certainly broadly enough to ban discrimination on the basis of sex. I can think of only one exception, a case in the ’70s involving the military draft, and that has since been reversed.

    So in effect, the 14th is already doing everything the ERA would do if it were in effect. Therefore, why bother?

    1. Because GOOD and HARD????

    2. There are a handle of cases, mostly in the 1970s, where the Supreme Court upheld things under intermediate scrutiny that they would have struck down under strict scrutiny. Drafting men only, sex-specific statutory rape laws, a few others. Some, like the single-sex draft, now seem anachronistic. But they’re there.

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