Monday, June 11, 2018
Mary Ziegler, The Jurisprudence of Uncertainty: Knowledge, Science & Abortion, 2018 Wisconsin L. Rev. 316 (2018)
While the outcome of abortion cases seems to depend exclusively on the undue-burden standard, we have mostly missed the linchpin of recent decisions: conclusions about who has the authority to resolve uncertain scientific or moral questions. Using original archival research, this Article traces the history and present-day impact of the law and politics of uncertainty doctrine in abortion law.
The Article makes sense of the inconsistency running through the Court’s abortion jurisprudence: that the Court has not applied a single, coherent definition of uncertainty. Specifically, the Court has confused objective uncertainty, involving gaps in knowledge that can theoretically be closed through research, and subjective uncertainty, involving moral, ethical, or philosophical questions. Conflating these two kinds of uncertainty has led the Court to inject moral disapproval and disgust into what theoretically are questions of fact.
The Article proposes that the Court should formally distinguish between objective and subjective uncertainty. In cases of subjective uncertainty, the Court should generally defer to legislatures’ views on matters like the value of fetal life or equality for women, balancing them against the constitutional liberty recognized in Casey and Roe. When dealing with objective uncertainty, the Court should look for evidence on the purpose and effect of a law as the Court recently explained in Whole Woman’s Health v. Hellerstedt. Disentangling the two forms of uncertainty will make abortion jurisprudence more coherent, consistent, and faithful to the balance of competing constitutional values that Casey and Whole Woman’s Health command.
Thursday, May 10, 2018
The Ruth Bader Ginsburg documentary, RBG, directed by Betsy West and Julie Cohen, is probably not what you think it is, or even what, given the partisan hoopla in which we attempt to live our lives, you’d be forgiven for thinking it might be: a fawning polemic detailing a liberal justice battling the court’s right wing. There is fawning, though a fair amount is done by conservatives, including soon-to-retire Republican Senator Orrin Hatch and Antonin Scalia, the conservative justice and, until his death in 2016, the BFF of RBG. But the film is a deftly crafted portrait of a refreshingly wildly mild-mannered legal mind who was a powerful force in American life long before she donned the black robes and her trademark collars (one for dissenting opinions, one when she is siding with the majority, a fashion touch she developed with her female justice predecessor, Sandra Day O’Connor). What’s surprising to a casual follower of the judicial branch is that you’ll be reaching not for your legal pad while watching the film, but the tissues, given that what actually underpins RBG is a love story.
Wednesday, April 18, 2018
The U.S. Supreme Court has declined to hear an appeal of a ruling that overturned a lower court decision granting a preliminary injunction to a Maine minister who asserted that he was being unlawfully targeted by police outside of a Planned Parenthood facility for his pro-life preaching.
The high court declined certiorari in the case of March v. Mills, et. al. without comment on Monday, allowing a First Circuit ruling against the preacher’s public proclamations to stand.
However, as the courts ruled solely on the merits of the law and not how it was being applied specifically to Andrew March of Cell 53 Church, his attorneys will refile and continue the fight.“The case is far from over,” Kate Oliveri of the Thomas More Law Center told the Bangor Daily News. “There are several challenges that we will go back to the District Court with.”...
In May 2016, U.S. District Judge Nancy Torresen, appointed to the bench by Barack Obama, sided with March, opining that the “intent to interfere” portion of the law would pertain to the content of the speech, and would therefore only relate to pro-life speech, which would consequently be an unconstitutional content-based restriction.
“Continued enforcement of a content-based restriction on speech would result in irreparable harm to the Plaintiff,” Torreson ruled.
She said that there are other ways to keep order on the public sidewalk, as police “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.”
However, in August, the First Circuit Court of Appeals overturned Torreson’s ruling, stating that they rather found the law to be content-neutral and that it does not ban abortion opponents from conversing with others, as opposed to lifting up one’s voice to preach—if in doing so the person’s voice can be heard inside the building.
“[T]he requirements laid out on the face of the noise provision do not indicate that the measure would apply to speech expressed at a normal, conversational tone—or even at a louder volume—absent the speaker’s intent to disrupt the provision or receipt of medical services,” it wrote.
The First Circuit Court of Appeals case is here, March v. Mills (2017)
Tuesday, April 10, 2018
My latest article thinking about gender and remedies.
Tracy A. Thomas, Leveling Down Gender Equality
The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute. The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers. It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case.
This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of. It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants. In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools. In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men. And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.
Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality. This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors. When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off. But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.
The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination. This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision. It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end. Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy. It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional. The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.
This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality. But this is where the Court went wrong. The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection. Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board. Equality itself, as a constitutional right, dictates more than just empty formalism. And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised. For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court. Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.
This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers. Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course. It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy. Given these constitutional norms, the Article then argues that the remedial calculus should be changed. Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut. Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself. Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.
Friday, March 23, 2018
Marcia Zug, Make Immigration Great Again: How Morales-Santana Could Signal the End of Sexist Immigration Law and Provide a Way to Fight the Travel Ban, Wake Forest L. Rev. (forthcoming)
Gender plays a surprisingly important, and arguably unjust, role in immigration law. Explicit gender divisions and gender stereotypes are widespread. However, prior to the Supreme Court's recent decision in Morales-Santana, these distinctions have been consistently upheld. Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is extremely important. It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination. Moreover, given immigration law’s long history of gender bias, the possibilities for discrimination claims are numerous and thus, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project. International Refugee limited the scope of the government’s proposed travel ban and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.Reading the two cases together, this essay suggests that gender discrimination claims may provide a new and effective means of challenging the travel ban, particularly if the current race and nationality based challenges fail.
Wednesday, March 21, 2018
Cary Franklin, Biological Warfare: Constitutional Conflict Over 'Inherent Differences' Between the Sexes, Supreme Court Review (forthcoming)
Equal protection law no longer recognizes so-called “inherent differences” among the races as a justification for discrimination. The law takes a different view of sex. It continues to recognize “inherent differences” as a legitimate ground for treating men and women differently — as long as the differential treatment does not perpetuate women’s subordination or reinforce traditional sex stereotypes. This doctrine raises a host of difficult questions, most notably, what counts as an “inherent difference”?
The Court confronted that question twice in its 2016 Term. In Pavan v. Smith, the Court had to decide whether Arkansas could treat same-sex couples differently from different-sex couples with respect to their children’s birth certificates. In Sessions v. Morales-Santana, the question was whether the federal government, for purposes of assigning citizenship, could treat non-marital children born abroad to mixed-nationality couples differently depending on the sex of their U.S. citizen parent. In both cases, the Court rejected the government’s ostensibly biological justification for the differential treatment. But the new and important ways in which it reasoned about biology in these cases has not received much notice. Commentators treated Pavan as an obvious and relatively unimportant extension of the Court’s famous 2015 same-sex marriage decision. Meanwhile, so much was happening in the context of immigration when Morales-Santana came down that it did not attract much attention — and what attention it did attract tended to focus on the unusual remedy the Court adopted, not its reasoning about biology.
This Article argues that Pavan and Morales-Santana, especially when read together, are surprisingly transformative and consequential decisions. In the past, the Court has declined to apply heightened scrutiny to biologically-justified sex classifications in contexts involving gay people and unmarried fathers. As a result, these contexts have become repositories of specious biological justifications for discrimination; pregnancy, in particular, has been understood to justify all manner of differential treatment in these areas. In Pavan and Morales-Santana, the Court broke with this tradition by genuinely scrutinizing the state’s pregnancy-based justifications for discriminating and finding them constitutionally inadequate. In so doing, it struck a serious blow against the most formidable barrier to equal protection where gay people, unmarried parents — and pregnant women — are concerned.
Friday, February 9, 2018
Justice Sonia Sotomayor this week homed in on pay inequality as one of the country’s biggest issues, as lawsuits are underway challenging the gender pay gaps at major companies and the Trump administration defends its scuttling of an expanded federal pay data rule.
In an appearance Wednesday at Brown University, Sotomayor was asked by a student what she considered the greatest challenges facing women.
“Women doing the same work still earn less than men. You can’t fight the facts. Pay equality is one of the biggest issues our nation faces,” Sotomayor said.
In November, the National Women’s Law Center and the Labor Council for Latin American Advancement sued the Trump administration’s Office of Management and Budget and the U.S. Equal Employment Opportunity Commission. They charged that government officials illegally blocked an Obama administration rule that would have required employers with 100 or more employees to report pay for their employees by race, gender and ethnicity.
The data rule was eliminated without explanation or opportunity for public comment, according to the lawsuit filed in U.S. District Court for the District of Columbia.***
Pay inequality wasn’t the only gender-related challenge on Sotomayor’s mind during the Brown discussion. She made a larger point about gender equality in the law:
“When I started, [law] firms of 300 and 400 had one or two female partners, and they were touting how progressive they were. What a joke, right? They told me that over time, we would reach equality. Well, I started in 1979, and there’s still only one-third women as federal judges, and we’re a lot of women in the profession. So, what’s happening?”
Thursday, February 8, 2018
The Supreme Court's New Approach to Pregnancy Discrimination and Pregnancy as a Normal Condition of Employment
Reva Siegel, Pregnancy as a Normal Condition of Employment: Comparative and Role-Based Accounts of Discrimination, William & Mary L. Rev (forthcoming)
As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.
In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which women as well as men would combine work and family—a world in which pregnancy would be a normal condition of employment. A social-roles analytic helps explain the logic of pregnancy discrimination, whether it assumes the form of hostility to pregnant workers or a simple failure to accommodate.
Drawing on this social-roles analytic, the Lecture offers a reading of Young v. UPS, the Supreme Court’s most recent decision on the PDA. Young breaks from an exclusively comparative approach and authorizes pregnancy accommodation claims under both disparate treatment and disparate impact frameworks. The Court’s approach is informed by a growing popular consensus. As the PDA turns forty, nearly half the states have enacted pregnant worker fairness acts supporting reasonable accommodation of pregnancy in the workplace.
Holly McCammon, Brittany N. Hearne, Allison R. McGrath, Minyoung Moon, Legal Mobilization and Analogical Framing: Feminist Litigators' Use of Race-Gender Analogies, 40 Law & Policy 57 (2018).
From the Introduction:
In an effort to contribute to our understanding of social movement judicial legal mobilization, our paper explores legal briefs submitted to the US Supreme Court in gender-equality cases since 1970. We focus particularly on the use of a specific type of legal framing in these briefs: analogical legal framing. As Sunstein (1993) points out, this is a commonly used form of reasoning in litigation, and some (Mayeri 2001; Rush 1997) argue that it is a dominant form, particularly in civil rights litigation. In analogical legal framing, a litigant argues that similarities exist, for instance, between two groups, and developments in law regarding one group should be considered in adjudication concerning the other group (Mayeri 2001; Sunstein 1993).2 Here we specifically investigate feminist litigators' use of race–gender analogies in their cause lawyering. Feminist cause lawyers have pursued a substantial number of cases before the high court over the last several decades in an effort to achieve greater gender equality under the law. In such cases, with some frequency, the feminist party to the case (that is, the party seeking greater gender equality) draws an analogy between racial and gender discrimination as they argue in favor of broadening gender equality. In fact, MacKinnon (1991, 1281) goes so far as to state that “the judicial interpretation of sex equality … has been built on the racial analogy.” Mayeri (2011, 3), who examines in rich detail “reasoning from race,” states that “‘second-wave’ feminists conscripted legal strategies developed to combat race discrimination into the service of women's rights.”
Various scholars explore whether and how movement activists invoke the law generally (e.g., Pedriana 2006; Andersen 2005; McCann 1994), yet few examine how cause lawyers articulate their demands in court. Our investigation contributes to the larger literature on legal mobilization by taking a number of steps. First, we explore the use of analogical legal framing by activists, a type of litigation reasoning commonly used but not yet investigated as a form of movement framing. We examine the frequency and trends in the use of such arguments in feminist briefs presented to the Supreme Court in gender-equality cases from 1970 to the present. In addition, we provide insight into the various forms the race–gender analogy takes. Second, we consider how social movement framing concepts, such as frame bridging and transformation (Snow et al. 1986), can be understood in combination with analogical legal framing.
Finally, our research also contributes to the understanding of why activists choose to deploy particular types of frames. A handful of scholars have investigated the circumstances shaping why movements articulate certain types of frames (e.g., McCammon 2012; Coe 2011; Maney, Woehrle, and Coy 2005), but few have considered the circumstances leading to the use of specific frames in movement litigation (for exceptions, see Goldberg 2014; Fuchs 2013; Ziegler 2011). Our investigation of analogic framing by feminist legal activists will enrich our understanding not only of movement framing but also (in particular) of framing as practiced by activists engaged in legal mobilization. By examining why shifts in the overall use and in the varying types of the analogic frame occur, our research furthers understanding of this particular form of legal mobilization strategy.
Tuesday, January 23, 2018
At the Sundance Film Festival on Sunday, Ginsburg had this to say about the #MeToo movement: "It's about time. For so long women were silent, thinking there was nothing you could do about it, but now the law is on the side of women, or men, who encounter harassment and that's a good thing."
Ginsburg isn't worried that the #MeToo movement might cause a backlash against women. "So far it's been great," she said. "When I see women appearing every place in numbers, I'm less worried about a backlash than I might have been 20 years ago."
Ginsburg recalled moments from her time as both a student and teacher when she experienced sexism and how she handled it. "Every woman of my vintage knows what sexual harassment is, although we didn't have a name for it," Ginsburg said.
She remembered one time when she sought help from a chemistry instructor at Cornell. The instructor gave her a practice exam, but it ended up being identical to the real thing. "I knew exactly what he wanted in return," she said. Taking matters into her own hands, she "went to his office and said, 'How dare you? How dare you do this?' And that was the end of that."
Monday, November 13, 2017
Today the US Supreme Court granted cert in National Institute of Family and Life Advocates v. Becerra
The petition for a writ of certiorari is granted and limited to the following question: “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."
For a prior post on the case see Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech
See also USA Today, Abortion, Contraception Return to Supreme Court in Free Speech Case
The Ninth Circuit's decision below upholding the law and disclosures is here.
Tuesday, October 3, 2017
An Originalist Defense of the Privileges or Immunities Clause for Gender Nondiscrimination in Bradwell v. Illinois
M. Frances Rooney, Note, The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination, Geo. J. Law & Public Policy (forthcoming).
The Privileges or Immunities Clause of the Fourteenth Amendment provides a constitutional right not to be discriminated against on the basis of gender. Original public meaning originalism provides the structure to find that the clause includes a right to practice a lawful profession that extends to all citizens, irrespective of gender. The clause is a guarantee of rights to every “citizen of the United States,” not every male citizen; because of that, the clause is a positive grant of rights to all citizens in the United States.
The central thesis of this Note is that women who are citizens of the United States have rights guaranteed by the Privileges or Immunities Clause, specifically the right to practice a profession. This right cannot be denied on the basis of gender, because adult women have the same capacity as men to practice law. Had this been recognized in 1873, the time The Slaughter-House Cases and Bradwell v. Illinois were decided, and had the erroneous interpretation of the clause in Slaughter-House not prevailed, Bradwell would have recognized this right. Given the contemporary knowledge of the capacities of women and an originalist approach to constitutional interpretation and construction, the decision in Bradwell should be overruled. Taking this step would lead to the development of an originalist gender equality jurisprudence.
Feminist pioneer Elizabeth Cady Stanton made a similar argument against Bradwell (and Minor v. Happersett) at the time using the P&I Clause. Although her arguments were more textualist than originalist per se. I discuss these early equality interpretations of the Privileges or Immunities Clause in my recent book Elizabeth Cady Stanton & the Feminist Foundations of Family Law. A blog post summarizing the relevant part, chapter 2, is here, at What do You Women Want?: The 19th Century Demand for Reform of Marital Property.
Tuesday, September 26, 2017
Linda Edwards, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, 29 Yale J. L & Feminism 29 (2017)
On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.
The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers to the appellate case—with no vetting by cross examination or the rules of evidence. Yet, despite their controversial nature, they have thus far received little academic attention.
The time has come to ask some tough questions: Are these briefs legally permissible? Theoretically legitimate? How do they compare with other sources consulted regularly by the Court? Are they really so different from the policy arguments we have accepted without blinking for over a hundred years?
These foundational questions quickly take us into even murkier waters—legal and constitutional theory; narrative theory; framing; and cognitive science. Voices briefs prompt us to look at constitutional decision-making in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around. The analysis produces some surprising reasons why voices briefs can play an important role in constitutional interpretation and some realistic ideas about handling the undeniable concerns that still haunt their use.
Wednesday, September 13, 2017
Taunya Lovell Banks, President Obama and the Supremes: Obama's Legacy -- The Rise of Women's Voices on the Court, (forthcoming), Drake Law Rev. (forthcoming)
For approximately two hundred years, all of the United States Supreme Court justices were male. Now there are three women on the Court, two appointed during the administration of President Barack Obama. With the appointment of Justices Sotomayor and Kagan to the Court, women’s voices literally are more prominent, especially during oral argument. This article speculates on whether the presence of these three women on the Court will influence the substance of decisions. It asks whether we are witnessing the emergence of a definable “women’s” voice, in the collective sense, or whether there is simply a greater representation of women on the Court; women justices, who like their male counterparts, sometimes agree and sometimes do not. In addition, this article asks whether the reaction of some commentators, and male justices, to the increased participation of women justices during oral argument suggests implicit gender bias, another possible by-product of President Obama’s legacy.
Tuesday, September 12, 2017
Armie Hammer will start opposite Felicity Jones in On the Basis of Sex, the biopic of renowned Supreme Court Justice Ruth Bader Ginsburg.
Participant Media is behind the drama, which will be directed by Mimi Leder from a script by Daniel Stiepleman, who is also Ginsburg’s nephew.Sex focuses on Ginsburg, played by Jones, as she teams up with her husband, Marty Ginsburg (Hammer) to bring the first landmark gender discrimination case before the Supreme Court.
The movie is eyeing a fall shoot in Montreal.
The feature is slated for release in 2018, in line with Ginsburg's 25th anniversary as a Supreme Court Justice. Focus Features is distributing domestically.
Felicity Jones is set to star as Ruth Bader Ginsburg in a biopic about the Supreme Court justice's life.
On the Basis of Sex will be directed by Mimi Leder (The Leftovers, Shameless) and follows Ginsburg as she fights for equal rights throughout her entire law career, which began at Harvard University and Columbia Law School and led to Washington.
At one time, Natalie Portman was considered to play Ginsburg in the feature, which was written by Daniel Stiepleman and was placed on the 2014 Black List.
Thursday, June 22, 2017
Linda Greenhouse, Justice Ginsburg and the Price of Equality, NYT, discussing Ginsburg's opinion in the recent case Sessions v. Morales-Santana finding a citizenship rule that treated unwed fathers differently than mothers to violate equal protection, but denying the remedy of extending the beneficial mother's rule to fathers.
And what about Justice Ginsburg? Can we assume she’s happy with the outcome of the case, or do we suppose she wrote the remedial section with gritted teeth? Twenty-four years ago, in July 1993, she was President Bill Clinton’s first Supreme Court nominee, and I covered her Senate confirmation hearing. I had met Judge Ginsburg several times, but didn’t know her well. I found her Judiciary Committee testimony enlightening, and I wrote an analysis that appeared under the headline “A Sense of Judicial Limits.” I described her as “something of a rare creature in the modern judicial lexicon: a judicial restraint liberal.” By that I meant that while her own commitments were to liberal outcomes, she displayed an equally strong commitment to letting Congress take the lead. “In her view, equality — or any other goal — is best achieved if all branches of government have a stake in achieving it.”
So I’m ready to assume that if the remedial portion of her opinion last week was a compromise, it was one she offered willingly. Her “over to you, Congress” handoff may seem naïve in the present political climate, but it conforms with her deepest beliefs about the appropriate judicial role.
And it’s worth remembering that from her earliest years as a nervous young lawyer standing before the nine men of the Supreme Court, Ruth Ginsburg has always played a long game, with the ultimate goal, equality of the sexes, constantly in view. As this case turned out, the price for equality was high. But I don’t doubt that for Justice Ginsburg, it was a price worth paying for being able to strike a blow against still another law based on a generalization about the way “men and women are.”
I have previously blogged about my thoughts on Ginsburg's decision leveling down the remedy for equal protection. See SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?
Thursday, June 15, 2017
Katie Eyer, Protected Class Rational Basis Review, 95 N.C. Law Rev. (2017)
It is commonplace today to associate rational basis review exclusively with groups that are not formally afforded heightened scrutiny under the Supreme Court’s equal protection precedents: groups like gays and lesbians, people with disabilities, and undocumented immigrants. Thus, discussions of the benefits of nurturing a jurisprudence of meaningful rational basis review typically focus exclusively on such “unprotected” groups. In contrast, rational basis review is rarely thought of as providing important protections for groups such as racial minorities and women, who have secured “protected class” status and therefore are subject to regular heightened review of group-burdening classifications.
Drawing on extensive original archival research, this Article challenges this common conception. Race and sex discrimination litigators have often historically relied on rational basis arguments as a complement to heightened scrutiny. And during eras when robust rational basis review was prevalent—such as the 1970s—these claims have often succeeded. Today, as a result of, inter alia, the LGBT rights cases (which have expanded judicial conceptions of the scope of rational basis review), we stand at a moment of increased possibility for meaningful rational basis review. Rational basis arguments thus ought to form a part of how we conceptualize the contemporary possibilities for race and gender justice claims.
Such an approach has the potential to revitalize what has long been a stalled constitutional jurisprudence around sex and race discrimination. As many scholars have acknowledged, it is extraordinarily rare for courts today to find that a government actor engaged in intentional discrimination against women or racial minorities—the contemporary standard for triggering heightened scrutiny. But as the history unearthed herein demonstrates, courts (especially lower courts) have, at times, been willing to find that racially and gender-impactful laws violate rational basis review. Moreover, such review has often had the capacity to undermine widely shared assumptions regarding the rationality of entrenched structures of race and gender oppression. As such, protected class rational basis review may present one of the few realistic alternatives for reviving a meaningful project of race- and gender-based constitutional change today.
A summary from SCOTUSblog:
At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”
Here's more from Debbie Brake, Remedial Grief:
The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights. The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory. One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them. The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause. The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.
This tried and true tactic is not merely a remnant of segregation. Leveling down surfaces periodically as a response to equality claims. In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off. In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination. Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down. Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether. Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination. ***
Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention. The Morales-Santana decision is no exception. Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension. One the one hand, the Court identifies a general preference for extension. On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation. The Court’s invocation of these two principles is somewhat mystifying. The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source). Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent. If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter. In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.
By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group. Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.
And Brake, Remedial Grief, Part 2:
The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.
Wednesday, June 14, 2017
I blogged yesterday about the Supreme Court's decision in Sessions v. Morales-Santana and its remedying of sex discrimination by leveling down, or withdrawing a benefit from one sex, rather than leveling up and extending the benefit to both.
Here is more on the leveling down remedy.
Michael Dorf, Equal Protection and Leveling Down as Schadenfreude
My Verdict column this week explores Monday's Supreme Court ruling in Sessions v. Morales-Santana, in which the Court invalidated a federal statutory provision that confers citizenship on children born outside the U.S. to unwed U.S.-citizen mothers in some circumstances in which such citizenship is denied to children born outside the U.S. to unwed U.S.-citizen fathers.
As I note in my column, an equal protection violation can be remedied either by leveling up (everyone gets the benefit) or leveling down (no one does). The leading case is Heckler v. Mathews. Justice Ginsburg's majority opinion in Morales-Santana parses what I call Congress's "fallback" intent to conclude that the right remedy (absent further congressional intervention) is leveling down. On Take Care, Ian Samuel argues that this "mean remedy" could harm people who thought they were U.S. citizens. Yet the Court says that its holding applies only "prospectively." Not good enough, Samuel complains, because, he says, the Court does not explain what "prospectively" means. I agree that Justice Ginsburg's opinion could have been clearer but she approvingly cites the Solicitor General's merits brief and reply brief on this point. The SG's argument at the relevant pages really only makes sense on the assumption that "prospective" application means application to children born abroad to U.S.-citizen mothers after the date of the Court's opinion--unless and until Congress changes the law.
Because Samuel reads the opinion as harsher than I believe it is, he ends up preferring the approach--at least in practical effect--of Justices Thomas and Alito. Yet, as I shall explain, I do not think that their approach is possible without overruling Heckler v. Mathews.
To see why, we need a brief recap of Heckler v. Mathews. The Social Security Act contained a provision that conferred certain benefits on women but not men. In what Congress no doubt thought was a fiendishly clever poison pill, the statute also provided that in the event that the courts struck down the sex-based preference, no one would get the benefit, i.e., the fallback was leveling down. Then, when a man challenged the law as sex discrimination, the government argued that he lacked standing, invoking the poison pill: Even if the male challenger prevailed on his equal protection claim, the government said, he wouldn't get any benefit; thus his injury was not redressable by a favorable ruling.
The SCOTUS disagreed. Although validating Congress's right to level down via a fallback provision, the Court said that the plaintiff's injury was nonetheless redressable by a favorable ruling. Sure, he wouldn't receive the financial benefit but he would get something else of value, namely, equal treatment. ***
Leveling down as a remedy for an equal protection violation has an element of schadenfreude about it. But it nonetheless comports with our notions of what equality is about.
Perhaps that is what formal equality is about. But feminists talk about equity as a concept broader than pure parallelism and providing equal opportunity for all. Thus, I would argue, formalism and leveling down is not an adequately meaningful remedy for a constitutional violation.
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.