The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.