Today in Supreme Court History: December 20, 1976

12/20/1976: Craig v. Boren decided.

Comments

[JoeFromtheBronx]

Craig v. Boren involves a so-called 'near beer' law, which "prohibits the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18."

The case was used to apply "intermediate scrutiny" to gender classifications. Some justices were wary of "tiers" of scrutiny but recognized that they reflected how different classifications were applied. Tiers of scrutiny are an example of imperfect doctrinal tests used to try to provide clarity in applying the law.

The Equal Protection Clause protects "persons" and is not limited to racial classifications. Women in 1868 had certain basic rights which could not be denied. If a law only allowed men to preach in public ala some verses of Pauline letters, it would have been problematic. The question was the scope of the equality.

Some people are annoyed that the Equal Rights Amendment allegedly was ratified sub silentio. It was not.

Putting aside the wider language found in that amendment,* an amendment is a formal constitutional declaration. Court opinions, developed over time, are less fixed. Not ratifying the ERA provided more flexibility to develop the law of sex/gender equality.

A final comment. Craig v. Boren was another case where men's rights were used to advance gender equality overall. Ruth Bader Ginsburg, who did not argue this case though she filed an amicus brief, saw such laws as furthering gender inequality in the long run.

==

* For instance, "shall not be denied or abridged" is broader than simply "deny" as dictated by the Equal Protection Clause. Some discussions of the ERA are a tad vapid and fail to recognize the potential breadth of its reach. The language also is often interpreted to mean "strict scrutiny" should be the test.

I also think that the argument that the ERA has been ratified without much of the nation knowing about it is dubious. I believe the deadline was an appropriate use of congressional power. See, e.g., Coleman v. Miller.

The final three states that "ratified" the amendment did so after the deadline was reached. Congress can lift the deadline since it is not part of the amendment itself. It has not.

[F.D. Wolf]

The Congress submitted the ERA to the states on March 22, 1972, with a 7-year deadline. In 1978, before the deadline had passed, Congress extended it until June 30, 1982. The validity of that purported extension remains an open question.

[Krayt]

The amendment process is to be out in the open so all can see, and The People can, in their wisdom, approve it or not.

There is no place for the usual lawyerly weasel tricks. If that starts, the whole thing has failed. This isn't a game of Nomic where power monger weasel shits get to tricky tricky the nation then go Ha Ha We fooled you! We snuck it in!

[jdgalt1]

If Congress had wanted the voting public to be in control of the ratification process, they could have specified that the ERA be ratified by state ratifying conventions as they did the 21st.

[SMP0328]

Congress can lift the deadline since it is not part of the amendment itself. It has not.

No, it can't. The Supreme Court has twice ruled that Congress can imposed a deadline on ratification (Dillon v. Gloss and Coleman v. Miller). In Coleman, the Court said the deadline did not need to be in the text of the proposed amendment. Even if Congress can extend the deadline, the extension for the ERA expired on June 30, 1982, and no Congress before then further extended the deadline. That means the ERA, and all of its ratifications, died on that date. If Congress wants to the States to again consider the ERA, it must repass it and again submit it for ratification (the new proposal would start with 0 ratifications). This was the view held by the Trump and Biden Justice Departments.

[Dan Schiavetta]

The ERA -- supported by the GOP since 1940 -- unfortunately ran afoul of misinformation and scare mongering. A large majority of the population, presented just with the text, would have approved.

[SMP0328]

There were too many unanswered questions regarding what effect ERA would have. The answer was always that the Supreme Court would ultimately have to decide. That meant the only way to know what ERA's effect would be on any given issue was to first adopt the amendment and then wait for the issue to reach SCOTUS. That uncertainty was a main reason for the ratification effort's failure.

[Dan Schiavetta]

That's not what I remember. The objections were more basic and visceral.

On the other side of the debate was whether the ERA was even necessary. At his confirmation hearing, John Paul Stevens said that passage would be only "symbolic" because the aims had already been accomplished via legislation and Equal Protection analysis. When he said this, it generated a vigorous debate in my college poly sci class.

Yet another side of the debate was presented to me personally in the college cafeteria. A girl I didn't know sat down at the next table, facing me. She had on a tight T-shirt with no bra (quite evident as she shook her bottle of chocolate milk). The T-shirt had on it the 26-word text of the ERA. Did she want me to read it? What if she looked up at me? It was just me and her, in that part of the cafeteria. Did she think I was looking at her chest? Yet I had to, if I was supposed to read what was on it.

[SMP0328]

Yet another side of the debate was presented to me personally in the college cafeteria. A girl I didn't know sat down at the next table, facing me. She had on a tight T-shirt with no bra (quite evident as she shook her bottle of chocolate milk). The T-shirt had on it the 26-word text of the ERA. Did she want me to read it? What if she looked up at me? It was just me and her, in that part of the cafeteria. Did she think I was looking at her chest? Yet I had to, if I was supposed to read what was on it.

Sounds like a trap. If you read the shirt, she would claim you were sexual harassing her. If you don't read the shirt, she would claim you are ignoring her and are a sexist.

[Dan Schiavetta]

Hearing me tell it, it sounds like a trap. But the braless look was so prevalent in those days that I think she was oblivious to it.

[Bob from Ohio]

"ran afoul of misinformation and scare mongering"

No, it ran afoul of Phyllis Schlafly. The greatest woman in US political history.

[SRG2]

Phyllis Schlafly. The greatest woman in US political history.

I have lived long enough in the US to note that, similarly, the NY Mets are the greatest team in MLB history.

[Bob from Ohio]

Name a woman who made a bigger political impact?

She just about single-handedly stopped the ERA cold after it well over half of the states had already ratified.

[Commenter_XY]

Edith Wilson. Followed by Jill Biden.

I rest my case. 😉
(you know I am right, lol)

[Hugo S. Cunningham]

SCotUS enacted the popular aspects of ERA with expanded 14th Amendment rulings. All that were left were unpopular aspects, eg drafting women into combat on the same basis as men. And nowadays transgenderism could be a fraught subject...

[JoeFromtheBronx]

I am aware of the Trump Justice Department view. I am not aware of the Biden Justice Department holding it too. It is not final.

The deadline is not part of the amendment. Congress passed the deadline as part of its power to regulate the amendment process.

If it could extend the deadline the first time, there is no special constitutional disqualification from doing it again.

Coleman v. Miller provides open-ended language, including congressional discretion over determining ratification is contemporaneous to proposal. The Senate recently tried and failed to remove the deadline:

https://www.congress.gov/bill/118th-congress/senate-joint-resolution/4

There was pushback on its ability to do so but I don't think they lacked the power to do so. As a matter of prudence, I think too much time passed to lift the deadline.

[F.D. Wolf]

There are several issues with purporting to extend a deadline, especially after it has expired. For one, the original deadline was necessarily passed with a 2/3 vote of both Houses, whereas the extension was passed with simple majorities. And if Congress can extend (or eliminate) a deadline, can it shorten a deadline? If one Congress can extend a deadline by three years with simple majorities, can the next Congress rescind that extension, and the Congress after that revive it, and so on?

I suspect the courts would err on the side of finality and certainty.

[JoeFromtheBronx]

The deadline is not part of the amendment. It does not need a 2/3 vote. Coleman v. Miller, especially the concurring justices erred on the side of making the whole thing a political question.

[SMP0328]

Coleman v. Miller was decided before Baker v. Carr, which greatly narrowed the Political Question Doctrine. I think today's Court would agree with Coleman regarding Congress having the sole discretion as to whether a time limit is placed on a proposed amendment and that such a time limit need not be in the proposal's text, but would clarify that such discretion lies solely with the proposing Congress.

[F.D. Wolf]

You are making conclusory statements as if they were settled principles. Coleman v. Miller concerned the Kansas legislature's purported ratification of the Child Labor Amendment. The Amendment was submitted to the States in 1924. The Kansas ratification at issue in the case occurred in 1937. Though the Amendment was submitted without a deadline, the petitioners were, in essence, asking the Court to impose one, arguing that too much time had passed, and the Amendment had lost its "vitality". The Court declined to do so, holding that was up to Congress to determine.

For the Court to say, "We are not going to impose our own deadline where Congress has placed none," is not the same as the Court saying, "We are going to ignore a deadline put in place by Congress." I think Coleman has little to say about that situation.

But - and please correct me if I'm wrong - per your reasoning, Congress could pass an amendment, submit it to the states with a 7-year deadline not explicitly in the text ("not part of the Amendment", to use your phraseology), then a few days later or any time afterward, pass a resolution that effectively said, that 7-year deadline we sent you is now a 24-hour deadline. Is that correct?

[The Margrave of Azilia]

"Not ratifying the ERA provided more flexibility to develop the law of sex/gender equality."

It was Saint RBG's salami tactics, forcing the amendment on the country one small piece at a time. When the salami is gone, you can talk all you want about intermediate scrutiny, but when military academies and nursing schools are supposed to change their policies and admit women (or men as the case may be), you gotta admit that sounds really ERA-ish.

The ERA didn't get the constitutionally-required approval.

[F.D. Wolf]

On this day, December 20, 1869, President Ulysses S. Grant nominated Edwin Stanton to a seat on the Supreme Court. Stanton was confirmed by the Senate that same day but died four days later before receiving his commission.

Justice Robert Cooper Grier had announced his retirement on December 14, effective February 1, 1870. That same day, Grant nominated his Attorney General Ebenezer Hoar to succeed him, but the nomination was rejected by the Senate, 24-33. Hoar, a former justice of the Massachusetts Supreme Court, was eminently qualified, but he had a brusque, sharp-tongued manner which had rubbed many in the Senate the wrong way. He had advised Grant directly on lower court appointments without consulting the Senate. He had also been a vocal opponent of the impeachment of President Johnson which had occurred the year prior.

After Hoar's rejection, a group of senators advised Grant to nominate Stanton. Grant and Stanton did not particularly like each other, dating to conflicts between them during the Civil War, when Stanton had been Secretary of War and Grant Commanding General of the Army, Grant (and other generals) being annoyed with what they perceived as Stanton's micromanagement. However, not wanting another fight with the Senate, Grant acceded and nominated Stanton.

After Stanton's death, Grant sent his commission to his widow. Congress passed a law awarding Stanton's widow the amount of one year's salary of an associate justice. Grant would not send the nomination of William Strong to succeed Grier on the Court until February 7, deliberately waiting until after Grier had officially stepped down. The Senate would confirm Strong on February 18. (Curiously, the vote for Strong is not recorded, appearing to be the only such incident in the history of Court nominations).

In the concourse of the Ohio Supreme Court building there are nine plaques commemorating Ohioans who have served on the U.S. Supreme Court. One of them reads, "EDWIN McMASTERS STANTON, JUSTICE OF THE UNITED STATES SUPREME COURT, 1869-1869," beneath a portrait of "Justice" Stanton.

[JoeFromtheBronx]

"After Hoar's rejection, a group of senators advised Grant to nominate Stanton."

Hoar's rejection was on February 3, 1870, after Stanton died.

Strong and Bradley were nominated on 2/7/70.

[F.D. Wolf]

Thank you. You have caught me in an egregious error, for which I apologize.

During Johnson's presidency, Congress reduced the size of the Court from 10 to 7, to be gradually reduced as justices left the Court. The Court got down to 8, but when Grant became president, Congress restored the Court to 9, where it remains today. Then Grier resigned, giving Grant two vacancies to fill, Grier's seat and the new seat. Hoar was nominated to the new seat and Stanton to Grier's seat.

I sincerely apologize for the error and thank you for bringing it to my attention.

[Dan Schiavetta]

United States v. Marion, 404 U.S. 307 (decided December 20, 1971): speedy trial requirement (Sixth Amendment) is not triggered until arrest (here, for business fraud, where prosecutors waited three years before arresting); the accused (or rather, future accused) is still protected by the statute of limitations

Craig v. Boren, 429 U.S. 190 (decided December 20, 1976): denial of Equal Protection when Oklahoma men held to higher drinking age (21) than women (18) (opinion notes how they are treated differently anyway, with drunk men being arrested while drunk women are “chivalrously escorted home”, and how women are more affected by alcohol due to lower body weight such that statute as stands “is actually perverse”)

Hirota v. General of the Army MacArthur, 338 U.S. 197 (decided December 20, 1948): tribunals set up by military government of Japan are not part of federal court system so can’t be appealed from (officers and “high officials” of former Japanese government were jailed after being found guilty of war crimes and sought habeas)

[John F. Carr]

Contrast Michael M. v. Superior Court of Sonoma County 450 U.S. 464 (1981) five years after the drinking age case. California had a satisfactory reason to punish statutory rape of girls but not of boys.

[Dan Schiavetta]

That was because girls were not "similarly situated", to put it mildly. As noted by the Court in Craig, the statute at issue was actually perverse. As if only girls were to be punished for underage sex. (Wait -- that used to be what actually happened!)

(See, e.g., Debby McClatchy, "You Were Only F**king, While I Was Making Love", on her Debby McClatchy with the Red Clay Ramblers album.)

Though I do believe the Michael M. case was wrongly decided.