Tuesday, June 13, 2017
SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?
I've spent much of the last 20 years writing about remedies. Specifically, I have written a lot about the right to a meaningful remedy required by due process. (For more, see here, here, here, here.) The Supreme Court’s decision in Sessions v. Morales-Santana violates this general command of the law and more concerningly, jeopardizes equal protection law. For a right without a remedy has little value.
In Morales-Santana, a six-justice majority of the Supreme Court led by Justice Ginsburg and including Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan, found that the US law of citizenship for a child born abroad to one American parent discriminated on the basis of the gender. The law required an unwed father to have five years physical presence in the US before going abroad, while an unwed mother needed only one year. Ginsburg in the majority opinion waxes eloquently about the dangers of formal sex classifications and the reliance on “stunningly anachronistic” stereotypes of gender and parenting roles.
The Court, however, refused to grant the remedy requested of applying the one year rule to men. Instead, it applied the five year rule to everyone. Ginsburg acknowledges that the usual equal protection remedy is to extend protection and benefit to the class denied, rather than withdrawing the benefit for both classes. She says, however, and unconvincingly, that the statutory language here requires the withdrawal and application of the stricter standard until Congress weighs in.
I have to agree with Ian Samuel that this remedial decision is a “contender for the worst thing Justice Ginsburg has ever written for the Court.” It seriously jeopardizes equal protection law, and the availability of practical, meaningful relief for discrimination. The equality principle becomes normative rather than operative. It emasculates the equality law by denying the meaningful relief sought of equal application of the benefit. Practically, if discriminatory treatment results in merely a formal reprimand, and actually takes away benefit, there will be little incentive for plaintiffs to sue. Discriminatory treatment will go unchallenged, or will require only “mean” plaintiffs seeking to deny others benefit if they can’t have the benefit too.
I’ve been trying to figure out then, why Ginsburg would write this, and why some of the other Justices would go along.
1. Failure to Consider the Precedent: If there had been a will to award the remedy requested, there was a way to do so. For the remedial holding is in stark contrast to Ginsburg’s demand for a remedy if extension and inclusion in US v. Virginia. There, after the Court held that the Virginia Military Institute (VMI) discrimination against women by not admitting them to the full military education, Ginsburg strongly rejected remedies of anything other than full inclusion and admission to the program. She rejected the creation of a separate military school for women, and reiterated that the remedy required was inclusion and opportunity in the program provided to men. Certainly the VMI case gave her the solid precedent to demand a remedy of inclusion in Morales-Santana.
Interestingly, the Court does not cite one of its closest prior cases where it found an equal protection violation but denied a remedy. In Dep't of Power v. Manhart, 435 U.S. 702 (1978), the Court held that requiring women employees to pay more for retirement benefits than men (because of their average longer longevity) was discrimination. The practice was stopped going forward due to a change in state law, but the Court denied the reimbursement remedy sought by the plaintiffs. The Court created a framework to consider the equities of the impact on the defendant (how would the government get all that money) and potentially on third parties of other retirees. (I’ve written about Manhart here and here).
This equitable standard and framework of Manhart could have been useful to Justice Ginsburg in weighing the equities of the impact of a change in the citizenship rule. It provided a mechanism to evaluate the potential harms to third parties like the children effected, and would have given support for a remedy extending the one-year rule to men.
2. Vote Getting: Perhaps Ginsburg agreed on the remedy to gain votes for the substantive decision on equality. That is certainly a common judicial approach to compromise to get the votes. And remedies are often easy ways for judges to gain these votes without appearing to compromise on the merits. Who were the questionable Justices? Roberts? Kennedy? She only need one of these. Kennedy’s decision in Obergefell and Troxel both evidence strong concern with the impact of unconstitutional state action on children. Children here will be denied citizenship based on the actions of their parents, something Kennedy is usually concerned about. And Obergefell also shows his strong acceptance of the evolving nature of social constructions.
Thus it is possible that she need one vote to get the merits decision. Except, that frankly, there doesn’t seem to be much new in this decision on the substantive of gender and equal protection. The opinion provides a nice summary of the law, citing all of the prior precedents. But it doesn’t add any new ground. Ginsburg does repeat her “exceedingly persuasive justification” language from VMI, which has been read to suggest strict scrutiny is required for gender classifications. Except that she immediately goes on to cite the accepted standard of intermediate scrutiny for gender. So if anything, she has undermined her opinion in VMI that was trying to create precedent for a higher standard of scrutiny.
The majority opinion also arguably adds a new angle from Obergefell about the need to interpret gender discrimination claims against an evolving nature of societal expectations. However, that understanding of antiquated sex stereotypes already exists in the precedent in Hoyt, Frontiero, and Hibbs. The new decision makes it a little stronger, and perhaps that will prove useful in future cases. Except that if you win on this nice academic language, you still lose any meaningful remedy or change.
3. Retroactivity. One judicial strategy for making a decision on the merits palatable is to deny an immediate remedy. The idea is to have legal change dictated, but not applied until the future. This might explain the compromise on the remedy that brought in Roberts. Except, retroactivity usually allows for meaningful relief in the future, which this decision does not.
4. The Mean Remedy: This opinion now provides current, modern precedent for the dangers of equal protection challenges—the denial of benefit to all. What Samuel calls the "the mean remedy" denies benefit to both men and women, rather than extending the benefit one group had previously enjoined. This is the fear all litigators have in brining equal protection challenges, that you will win the battle but lose the war. This was a big concern we had decades ago when litigating a civil rights case on behalf of women prisoners, that the equality claims to equal education and employment (critical to good time credit, income, and rehabilitation) would not be extended equally, but would be denied to all. (That didn’t happen). It is also what VMI tried to do privately after the case – close down the school to deny public military education to both men and women, with the alumni then opening a private school for men only (assumed to be immune from the state action requirement).
Now we have confirmation of that fear – and precedent for denial. We have a new decision, with six votes of liberal and conservative Justices, providing the literal roadmap for future courts to deny the “extension” remedy and instead order the “withdrawal” of benefit in cases of sex discrimination. That to me is one giant step backwards.