Or Maybe Chief Justice Roberts Was Talking About The Democratic Senators Backing The Equal Rights Amendment?

A federal court ruled that the ERA could not be adopted. Democrat members of Congress told President Biden to adopt it anyway.

The Chief Justice's year-end report continues to confound. Roberts wrote "Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected." Who was he talking about?

Ruth Marcus thinks it was J.D. Vance. As Marcus tells it, Roberts took a swipe at the incoming Vice President. Is Roberts that dense? But in my view, Vance's full interview on the podcast reflects a sophisticated understanding of the limits of judicial supremacy. Ed Whelan made similar points.

A reader suggested that Roberts may have been talking about the 46 Democratic senators who recently signed a letter urging Biden to order the archivist to publish the ERA and recognize it as officially ratified. This move would be in defiance of several federal court rulings, as Ed Whelan also explained here and here. Was Roberts talking about nearly the entire Democratic membership in the United States? Could Roberts be so dense?

Who was Roberts talking about? None of us have any clue. We are only left to speculate. And that is a problem. The Chief Justice of the United States took a swipe at unnamed members of the coordinate branch of government, leaving people to attack politicians like the incoming Vice President and Senators with the imprimatur of the Chief Justice. Roberts tried to stay out of politics, but in the process, unduly injected the Court into politics. Sound familiar? Time and again, whenever Roberts tries to "depoliticize" the Court, he ends up making the Court more political. This episode teaches, once again, why Judges should simply stay out of politics, and politicized-judging.

Be a judge, and let the political chips fall where they may. I hope Roberts learns this lesson, and doesn't try to pick-and-choose which Trump actions deserve lectures. If you want to focus on fixing institutions, start at home. STOP THE LEAKS.

Comments

[Thomas L. Knapp]

The Equal Rights Amendment HAS been adopted. It's been proposed by 2/3 of both houses of Congress and ratified by 3/4 of the state legislatures, as required by the Constitution. There's no constitutional power of Congress to set a time limit on the latter.

It's done.

The only question is whether the executive and judicial branches will recognize that fact of reality and act accordingly.

[David Nieporent]

There's no constitutional power of Congress to set a time limit on the latter.

Both Congress and the courts disagree with you.

[Thomas L. Knapp]

But the Constitution agrees with me.

[David Nieporent]

Oh good, a chance to use this wrt someone other than Brett: Area Man Passionate Defender Of What He Imagines Constitution To Be.

[SRG2]

He has a theoretical point, though. Nowhere in A.5 does Congress have any explicit power to impose any constraint on the ratification process.

[Brett Bellmore]

Well, no. " when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;"

But suppose that Congress originated an amendment having a clause that read, "Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress."?

Then if ratified in the 8th year, by its own, ratified terms, it would be void.

So long as the condition is included in the originating resolution, (As in the case of the ERA.) passed in the same supermajority vote, I don't see a problem. The extension of the deadline, conspicuously, did NOT achieve that constitutional threshold.

[Brett Bellmore]

Don't forget the states, they disagree, too.

[MaddogEngineer]

You mean, other than the DOJ OLC opinion and several federal court decisions which say otherwise, and the legal settlement the archivist of the United States entered into, which likely led his successor to put out the recent public statement that the amendment cannot be considered as ratified, because its ratification time limit was valid and had expired.

I bet you're one of those people very concerned about the rule of law! (when people you dislike are in office anyway)

[JoeFromtheBronx]

The Biden OLC noted that it accepted the Trump OLC opinion but that the opinion was merely advisory to Congress, which retained the power to revoke the deadline.

It also noted that the section saying Congress could not revoke the deadline was weaker than the original opinion said. The archivist referenced this. "The OLC concluded that extending or removing the deadline requires new action by Congress or the courts."

https://www.archives.gov/press/press-releases/2025/nr25-004

[MaddogEngineer]

So the OLC agreed that the ratification deadline had passed without the requisite number of states ratifying. Whether the OLC opinion is advisory to Congress is irrelevant, because the archivist is in the executive branch. Which is why the archivist wrote what she did, as I stated above. The topic here was the ERA that Congress sent to the states in 1972.

Your reply was superfluous, as it did not contradict anything I said. I wrote what I did because Thomas L. Knapp denied that Congress had any authority to set a time limit. Knapp wasn't asking Congress to act, he was asking the executive or judiciary to. Except no executive or judicial action could change the reality that the ratification deadline had already been adjudicated as valid and enforceable.

[Thomas L. Knapp]

"Knapp wasn't asking Congress to act, he was asking the executive or judiciary to."

Knapp wasn't asking anyone to do anything. Knapp was simply noticing that the ERA has been ratified, that it is now part of the Constitution, and that the executive and judicial branches haven't done their jobs of acknowledging that fact of reality.

I don't really give a tinker's dam whether they do their jobs or not -- I'm with Spooner on the value of the Constitution anyway.

[MatthewSlyfield]

"but that the opinion was merely advisory to Congress, which retained the power to revoke the deadline."

Something Congress has declined to do, so whether they could constitutionally do so is irrelevant.

[JoeFromtheBronx]

There's no constitutional power of Congress to set a time limit on the latter.

Dillon v. Gloss held proposal and ratification were constitutionally a relatively contemporaneous thing.

Coleman v. Miller noted it was left to Congress to determine such things. "Congress has the power under Article V to fix a reasonable limit of time for ratification"

The Necessary and Proper Clause provides the power to carry out Art. V. Congress is authorized to include a resolution determining the details of ratification timetables, address the details regarding the counting of votes, and so on.

Until the 27th Amendment, a trivial provision anyhow, the idea an amendment can be ratified in a distant time from proposal was never seriously supposed. The idea the 28th Amendment was ratified while most of the country wasn't aware is about as dubious.

[Area Man]

Agree about the N&P Clause. And nothing prevents individual states from revoking their ratifications before the amendment’s ratification is final. Thus, under the Tenth Amendment, they retain that power. Accordingly, not enough states have ratified the ERA because some of the states its (modern) supporters are counting revoked their ratifications long ago.

[JoeFromtheBronx]

Coleman v. Miller examines the revocation issue and held Congress has the responsibility to handle that. Historical practice and other things hold that states do not have the unilateral power to revoke.

("We think that, in accordance with this historic precedent, the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.")

[Area Man]

Well, I disagree with that. Say a state holds a election where the ratification of an amendment is one of or the primary issues. Then the anti-ratification party wins and takes over from the pro-ratification party. Then, during the lame-duck session, the pro-ratification party decides to ratify. Provided the amendment hasn’t been ultimately ratified, I see no reason why that state should be stuck with that decision. And if it’s not in that situation, then there’s no reason why it should be in any other (before final ratification, that is).

[Randal]

I think you got the argument exactly backwards.

Since a state ovbiously can't revoke its ratification after the amendment is ratified, that strongly suggests that it can't revoke before that either.

Otherwise you get into weird games of chicken between the states. If one state is planning to ratify but gets word that another state is preparing to revoke, maybe in response to an election, the first state may feel the need to race the election. You could imagine some terrible cases of trying to adjudicate when exactly the revocations happened relative to the ratifications in order to decide whether the amendment was ever ratified or not. There's no need for that sort of gamesmanship.

Once the amendment is in the constitution, it's done. No takebacks. The same rule applies to ratification.

[Roger S]

By that same reasoning, once a state votes against ratification, it is done, and it cannot have another vote on the matter.

[Randal]

It's not at all the same reasoning, although I'd be sympathetic to that rule for other reasons.

[Ben of Houston]

I would counter with something that should be obvious.

A constitutional amendment is altering the very foundation of our country. This is why it requires so much to pass. A supermajority of the house and a full 3/4 of the states to approve. We need almost unanimous agreement to change the constitution because it's such a big deal.

If an amendment is controversial, IT SHOULD NOT BE ENACTED. The very mechanisms of our government make this plain.

So, going by this basis, why should they not be able to change their minds? Why not be able to revoke approval before it's passed?

[Brett Bellmore]

Imagine the states voting on a controversial amendment, over a period of years. Every two years, a state legislature votes to ratify, and in the subsequent election is thrown out of office in favor of people promising to rescind. This goes on for 76 years.

At the end of 76 years the amendment is declared ratified, though at no time did more than one state support it, and every legislature that ratified got thrown out of office.

If that makes sense to you, then you'll agree that states can't rescind ratifications.

[Randal]

You're doing a version of the Chewbacca defense. Your hypothetical makes no more or less sense than any scenario in which a proposed amendment takes 76 years to get ratified. That's why we put expirations on them.

Imagine the defendant is guilty and Chewbacca lived on Endor. It's ridiculous! Proving that my client isn't guilty.

Well, it worked for Johnnie Cochran I suppose.

[David Nieporent]

Until the 27th Amendment, a trivial provision anyhow, the idea an amendment can be ratified in a distant time from proposal was never seriously supposed. The idea the 28th Amendment was ratified while most of the country wasn't aware is about as dubious.

It's even more dubious than that. For the ERA to be deemed to have been ratified, not only does one have to conclude that Congress lacks the power to set a deadline (as Mr.Knapp contends) but one also has to conclude that states lack the power to rescind their ratifications. The ratification of the 27th amendment was only non-controversial because the subject of the 27th amendment was non-controversial. Otherwise, the notion that a proposed amendment is a one-way ratchet and that once a state ever expresses support for it, it is locked into it forever and thus an old amendment can resurface at any time in the future, is, well, crazy.

[Randal]

As I was explaining to area man, amendments are one-way ratchets, like the death penalty. There should be no expectation of backsies.

[Krayt]

And this is the insane, power hungry, thug tricky, put one over on The People concept.

No, power thug, you don't get the honor to use weasel words to amend the Constitution. For The People to have confidence it's their Constitution, that they control, it must be open and obvious to all. There are no demigods who weasel-word deem it amended.

At no point did 37 states approve it. Some said no later. We are done here, dictatorial thug.

Some approved it under a time limit understanding. You cannot change the rules after the fact to make it win, any more than you can change the rules on what counts as a hanging chad, after the fact, to make your guy win. We are done here, dictatorial thug.

By the time you "go to court" to force an amendment approved, you've already failed, your highness, as it is no longer open and obvious to all. We are done here, dictatorial thug.

And the game of Nomic was a warning, not a model, on how to "work around" the Constitution, Working Around The Constitution For Dummies Weasels, the complete opposite of the design of the Constitution, as The People, and The States, telling the federal government its form, as permitted by them. We are done here, dictatorial thug.

[Randal]

Why are you going nutso in response to me, late-nite drunktard? I agree with you that the expiration was valid and the ERA irrevocably failed a long time ago.

Drunktard.

[David Nieporent]

As I was explaining to area man, amendments are one-way ratchets, like the death penalty. There should be no expectation of backsies.

"Asserting" and "explaining" are two different words. There isn't even any logic in your position — pre- and -post-ratification are entirely different things — and your only attempt at an argument was a silly hypothetical parade of horribles.

[David Nieporent]

While the text of the Constitution does not make the issue absolutely certain, a purposivist argument heavily supports the power to rescind: the purpose of the constitutional provision is to ensure that any such amendment has broad support, both geographically and in total numbers. That 17 people in Virginia in the 18th century might have thought a proposed amendment was a good idea does not in any way speak to the amendment's breadth or depth of support now.

[Randal]

That problem is solved much better with time limits.

[Randal]

Oh and, for the record, your argument is also an assertion followed by a parade of horribles.

In other words, in case the purpose of my purposivist argument wasn't clear enough, it's that the Constitution is the supreme root of law in this country, so the process for amending it needs to be totally clear and simple. It's imperative that everone agree what it says. Just look how much trouble this ambiguity is causing for the ERA. Is it part of the Constitution or not? (Thank god it's a meaningless amendment!) Any bonus procedural options just create opportunities for gamesmanship and ambiguity.

The Constitution doesn't give states the option of revocation, so the simplest and clearest reading is to disallow it, rather than add ambiguity and complexity with an argument that comes down to "well revocation really should be allowed so let's just say that it is."

[David Nieporent]

No; allowing them to revoke the ratification of a not-yet-adopted amendment is also simple and clear; there's nothing "ambiguous" or "complex" about them so doing.

[Randal]

You obviously don't do systems or process design. A one-way ratchet, as you called it, is a much simpler procedure than a two-way flip-flop. That's pretty elementary stuff, actually.

But that's just one piece. The other source of ambiguity is ambiguity around the process itself. Once we start allowing implied extensions to the process based on some sense of desirability, how do we know where to stop?

For example, how about delayed revocation? We revoke this ratification on Jan 1, 2030 at noon. Seems reasonable enough, right?

What about triggered delays, like, this ratification will auto-revoke precisely three years after the last state's ratification? That seems ok right?

What about directly triggered revocation? This ratification is hereby automatically revoked the instant California ratifies the Amemdment. Well... less great, but this would be a hard place to draw a line.

Now imagine all the states doing these very reasonable things. Not only does that create complexity, it also creates ambiguity in terms of which enactments are even constitutional and which aren't.

Again, the best places to draw a line are either they're all are constitutional or they all aren't. They can't all be constitutional, like, "The amendment ratified on weekends and revoked on weekdays" or "this ratification is worth 1/2 a state" (probably?) aren't going to work. So that leaves none as the straightforward option. Otherwise you need to articulate a principled line that's obvious enough to have implicit concensus. An unspoken line without concensus, which is what you're advocating, is a path to process ambiguity.

[Roger S]

Also, most of those state ratified the time limit. So you would have to say that all those state ratifications were defective.

[AmosArch]

So if a Congress briefly gets into power that starts an Amendment to make Christianity the mandatory state religion or that all gays should be sent to mental institutions no matter how low support is at any given time nationwide, they have an unlimited amount of time to pick off states one by one who may undergo brief periods of support for these measures? And if anybody whines about it you'll be there to set them straight I assume?

[Thomas L. Knapp]

I didn't WRITE the Constitution (nor am I a fan -- I'm with Spooner on its fitness to exist).

Nor do I particularly care about the ERA. Women have long since effectively secured its provisions and then some, for better or worse, by other means.

But the plain text is unambiguous, including the Tenth Amendment -- since the Constitution does not delegate a power to Congress to set a deadline on amendment ratification as outlined in the amendment requirements clauses, no such power exists.

[David Nieporent]

But the plain text is unambiguous, including the Tenth Amendment -- since the Constitution does not delegate a power to Congress to set a deadline on amendment ratification as outlined in the amendment requirements clauses, no such power exists.

That's not how the constitution works. (Somehow you missed the N&P clause, by the way.)

[TwelveInchPianist]

"There's no constitutional power of Congress to set a time limit on the latter."

There clearly is, if they put the time limit in the text of the amendment.

But requiring them to put the limit in the text of the amendment seems like placing form over substance.

[Ben of Houston]

That's just an absurd statement. Congress can't set a limit? Says Who?

If Congress says "We approve if it's done before 1982", then their approval was revoked in 1982.

To be honest, since the approvals that did occur were before a good chunk of our commenters were born and they ratified something with a major clause that's now impossible, I cannot fathom an argument that the initial ratifications are even valid. It goes against the most basic concepts of laws, approval, and consent.

If it's such an important thing that everyone agrees on, then it surely won't be hard to get approved once again.

[SimonP]

Could someone please mute this loser?

[VinniUSMC]

Yes, loser, consider yourself muted.

[MaddogEngineer]

Yes, I suspect the chief was.

Lawlessness is not the exclusive province of Trump, as we have seen over the last 4 years.

[JoeFromtheBronx]

Do you know who stops leaks? Plumbers. The Supreme Court needs to hire some plumbers. That's the ticket.

[MatthewSlyfield]

I hear Mario and Luigi are available.

[David Nieporent]

I think the latter is in prison, actually.

[Social Justice is neither]

Well Luigi is held up at the moment.

[Doug Heffernan]

"Leaks" as used by Blackman here is in a negative or pejorative sense.

When it comes to government operations, more information is usually better than secrecy. Except perhaps for military operations.

Sure, no one would have been commenting about the Chief's musings had he not made them. Speculation might be bad, but not as bad as less information or secrecy.

[Noscitur a sociis]

Who was Roberts talking about? None of us have any clue.

Speak for yourself, professor.

[Roger S]

Maybe Roberts was referring to Biden continuing to prosecute Trump, even after Trump was determined to be immune, and Jack Smith was ruled to be not a lawful prosecutor.

[Noscitur a sociis]

At what point was Trump “determined to be immune”?

[Roger S]

The US Supreme Court ruling was on July 1, 2024.

[not guilty]

Uh, in the wake of the July 1, 2024 SCOTUS ruling, Jack Smith obtained a superseding indictment which excised the portions of the original indictment as to which the Supreme Court's ruling would have clearly barred prosecution. If that superseding indictment is revived when Trump is no longer in office, the District Court will conduct further proceedings in order to determine what conduct alleged therein is or is not immune.

That is in full accord with what SCOTUS ordered.

[Noscitur a sociis]

Can you quote the part of the Supreme Court ruling that you feel determined that that Trump was (as opposed to might be) immune?

[Roger S]

The case is being dropped. You will find out if it ever gets back to court.

[Randal]

Heh. So now you admit he never was determined to be immune. You really are the definition of a jackass you know. You don't even try to remain consistent or purport to have any principles. You're just braying out a sequence of disconnected, content-free talking points.