Thursday, November 19, 2020
But many people overlook other things that could flow from new U.S. jurisprudence on abortion — such as erasing the right to birth control that the court recognized in a 1965 case, Griswold v. Connecticut. During her confirmation hearings, Barrett specifically refused to say whether she felt Griswold was correctly decided.
That was a flashing red warning light for Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group that argues cases on abortion and contraception. Roe, Northup says, is part of a century of jurisprudence based on the idea that the U.S. Constitution protects the liberty of individuals.
"It began with cases about how one educates one's children," Northup says, and includes same-sex marriage, contraception and abortion. You can't just take Roe out and not unravel the whole fabric."
Yet from what Barrett has said and written about the Constitution, Northup says, "it's clear she doesn't believe it protects the right to personal liberty."
The 7-2 decision in Griswold v. Connecticut is viewed as the basis for Roe v. Wade, the 1973 ruling that legalized a woman's right to abortion nationwide.
Instead of directly answering Coons' question about whether the Supreme Court made the appropriate ruling in Griswold, Barrett said she found it unlikely that decision would ever be overturned.
"It seems unthinkable that any legislature would pass such a law" taking away the right to buy or use contraception, she said. "I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided."
"I think that Griswold is very, very, very, very, very, very unlikely to go anywhere," she added.
Monday, November 2, 2020
Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett
I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court. Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court. The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.
Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court
Tuesday, October 13, 2020
Jordan Rubin, Supreme Court Considers Limits on Prosecuting Military Rape, Bloomberg
The U.S. Supreme Court heard arguments Tuesday in a case involving time limits on prosecuting rape in the military, as the justices wondered aloud how the U.S. Constitution impacts the armed forces’ separate justice system.
The government’s lawyer framed the stakes as whether three convicted rapists “go scot free.” Their lawyer said the service-members should receive the same protections that civilians do from cruel and unusual punishment.
Congress eliminated the statute of limitations for military rape in 2006. The high court is considering in this case whether a five-year limitations period applies to assaults committed earlier. The answer determines whether the rape convictions of Air Force members Michael Briggs, Richard Collins, and Humphrey Daniels are reinstated and whether other older cases can be prosecuted, too.***
In 1977, the Supreme Court outlawed capital punishment for the rape of an adult woman under the Eighth Amendment, which prohibits cruel and unusual punishment. The military justice code separately prohibits such punishment. But even after that high court ruling, rape was “punishable by death” under military law and there’s no limitations period for prosecuting death-punishable crimes.
Questions from Chief Justice John Roberts during the telephone argument illustrated a potential tension in the case. He asked acting U.S. Solicitor General Jeffrey Wall why that 1977 ruling, Coker v. Georgia, doesn’t affect military prosecutions? But Roberts likewise asked the lawyer arguing for the men, University of Texas law professor Stephen Vladeck, why Congress would want to make it impossible to prosecute military rapes after five years, no matter how heinous.
The Court of Appeals for the Armed Forces cited the Supreme Court’s prohibition on capital punishment in rape cases in 2018 when it said pre-2006 rapes couldn’t be tried outside a five-year statute of limitations. Following that ruling, the appeals court vacated the convictions of Briggs, Collins, and Daniels, who were all charged more than five years after their crimes, committed in 2005, 2000, and 1998.
The justices’ tough questions to both sides of the dispute left the outcome unclear. Arguments were heard before an eight-member court while confirmation hearings for Judge Amy Coney Barrett are underway. A tie vote would affirm the armed forces court’s ruling in favor of the men. A ruling is expected by late June.
Fighting to reinstate their convictions, the Trump administration cast its appeal against the backdrop of the military’s sexual assault problem. “It’s critical to be able to go after these crimes outside of what would otherwise be the five-year window in order to make progress on rape and sexual assault in the military,” Wall told the justices.
Responding to Justice Stephen Breyer’s query why Coker shouldn’t apply, Wall said the goals of criminal law “are served very differently in the military because of the military environment, the need to maintain trust and discipline, the need to achieve institutional equality, the need not to damage foreign relations.”
Monday, October 12, 2020
A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.
Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer
An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.
That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).
Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).
Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.
“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***
In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.
Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.
Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.
Tuesday, September 29, 2020
Erika Bachiochi, Amy Coney Barrett: A New Feminist Icon, Politico
National Review, Why Left Wing Feminists Hate Amy Coney Barrett
Amy Coney Barrett is Not a Feminist Icon, Huff Post
My own view is the same as that I explained years ago when asked similarly whether then-VP candidate Sarah Palin was a feminist. No. Feminism is not just girl power, or women doing things traditionally reserved for men. Individual achievement in a field or profession (sometimes called "I-feminism") whether Vice Presidential candidate or Supreme Court Justice is not feminism. But it is a consequence of feminism and the work it has done to eradicate barriers to women's achievement. Feminism is the understanding of the gendered hierarchies and stereotypes of law and society, a commitment to reforming those gender injustices, with the goal of women's full and equal autonomy, agency, and opportunity. Under this definition, Barrett is not a feminist.
Monday, July 20, 2020
Giving Gender Discrimination a Meaningful Remedy: Rewriting Justice Ginsburg's Opinion in Morales-Santana
I have just published: Tracy Thomas, Rewriting Sessions v. Morales-Santana, in Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouche ed., July 2020)
In Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), the Supreme Court in an opinion by Justice Ginsburg struck down a citizenship law that discriminated against children born abroad to US citizens based on whether the citizen was their father or their mother. The opinion was widely held to be a model of equal protection analysis, documenting the legal history of the Court's gender equal protection law and recognizing the masculinity side of gender discrimination against men.
However, the opinion was problematic for its refusal to order a meaningful remedy for the petitioner. The Court did not grant the discrimination victim relief, but instead ordered the government to adopt formally equal rules going forward, and that those rules should be the more stringent rule for fathers. The Court was focused on restraining the government rather than redressing the individual's harm.
I have written about the remedial problem of so-called leveling down unequal treatment to deny the benefit. Tracy Thomas, Leveling Down Gender Equality, Harvard J. Law & Gender (2019).
In this book chapter, I apply these criticisms to rewrite the Court's opinion to properly award a meaningful remedy as required by due process. This book is part of the US Feminist Judgments Project rewriting key court decisions as if they had been informed by feminist theory.
Wednesday, July 8, 2020
The U.S. Supreme Court decided Little Sisters of the Poor v. Pennsylvania (July 8, 2020), in a split opinion, with the majority written by Justice Thomas. Justices Kagan and Breyer concurred in the judgment.
Justice Ginsburg strongly dissented,. recognizing the threat to not just women's healthcare, but women's equality.
In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. *** Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.
Tuesday, July 7, 2020
Caroline Mala Corbin, June Medical is the New Casey
The atmosphere awaiting the Supreme Court’s decision in Planned Parenthood v. Casey felt similar to the one awaiting today’s decision in June Medical Services v. Russo. At stake was whether the U.S. Constitution would continue to protect a woman’s right to abortion. Casey reaffirmed that right but lowered the level of protection. June Medical does the same. In fact, Casey is likely to be the controlling Supreme Court precedent on abortion once again.
To understand what this means, let me provide a brief background on abortion and the Supreme Court. As most people realize, the Supreme Court declared that the right to abortion was a fundamental right in Roe v. Wade. Roe also required strict scrutiny of any abortion regulation, where regulations of first trimester abortion (when the vast majority of abortions occur) were presumptively unconstitutional.
What many do not realize is that the Supreme Court subsequently dialed back the level of protection in Planned Parenthood v. Casey (1992). In a 5-4 decision, the Supreme Court reaffirmed that abortion was still a constitutional right. However, the Court replaced the strict scrutiny test with the undue burden test, making abortion much easier to regulate. According to the Casey Court, as long as a law did not impose an “undue burden” on women seeking an abortion, it was fine. An undue burden occurs when the state places a substantial obstacle in the path of a woman hoping to end her pregnancy. Unfortunately, the Supreme Court in Casey and subsequent cases made clear their view that very few regulations impose an undue burden. Waiting periods? No undue burden. Outlawing a safer procedure? No undue burden. Under the Casey regime, states were able to severely restrict access to abortion by passing laws ostensibly to protect women’s health, but in reality undermined it by making abortion more expensive, time-consuming, and difficult to obtain due to clinic closures.
Quite unexpectedly, in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court strengthened the undue burden test, providing heightened protection for abortion rights. The analysis of whether a law imposed an undue burden now had two questions instead of one. As before, courts must consider whether a law created a substantial obstacle in the path of a women seeking an abortion. But in addition, the Court would consider the actual benefit of the law. If the stated goal was to improve women’s health, states must provide evidence to that effect. This is critical because, as mentioned above, states regularly passed laws which they claimed were to make abortion safer for women but were really designed to just make it harder.***
However, also similar to Casey, June Medical signals less protection for abortion rights going forward. Although Justice Breyer’s plurality opinion relied on the highly protective undue burden test as formulated by the Whole Woman’s Health majority, which requires examination of both the actual benefit of the law, as well as the burden imposed by the law, Chief Justice Roberts did not. Chief Justice Roberts, who provides the crucial fifth vote to reaffirm that abortion was a constitutionally protected right, repudiates the Whole Woman’s Health test. Instead, he wrote that “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” In other words, the test for whether an abortion regulation violates the constitution is the Casey test with one question, not two. Thus, like Casey, June Medical reaffirms abortion is a constitutional right while cutting back protection for abortion.
Dahlia Lithwick, Women are Being Written Out of Abortion Jurisprudence
It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russo, the major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.
In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. ***
There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roe, and Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and process. The regard for a woman’s right to choose itself? That doesn’t even register as material.
Monday, June 29, 2020
Today the US Supreme Court decided June Medical Services v. Russo striking down Louisiana's anti-abortion admitting privileges law.
The majority opinion by Justice Breyer reaffirms the legal standard of Whole Women's Health. It is a process-heavy decision about third-party standing and a painfully detailed discussion of the district court findings.
Chief Justice Roberts joins the liberal justices in the majority on grounds of stare decisis. This was essentially the same case as Whole Women's Health v. Hellerstadt (2016). He also rejects the cost-benefit balancing test of Whole Women's Health, leaving only a plurality of the Court endorsing that standard and returning to the core undue burden standard of Casey.
There are multiple dissenting opinions by the remaining four justices. Much of the debate devolves into a tangential discussion about deference to district court findings and as applied challenges.
No woman justice wrote any opinion. Every male justice wrote an opinion expressing his views.
Wednesday, May 20, 2020
The Causation Problem of "Because of Sex" in the Trio of Supreme Court Cases on Title VII, Gender Identity and Sexual Orientation, and a Proposed Solution
Shirley Lin, Aimee Stephens and Preserving Our Broader Understandings of Sex, JURIST
Just last week, we were saddened by the loss of Aimee Stephens at age 59. Ms. Stephens was a Detroit funeral director who, in 2013, announced a gender transition that exposed her employer’s deep intolerance toward transgender people. For seven years, she challenged the harsh dismissal and loss of livelihood that followed the announcement. Although she will not hear the Supreme Court’s decision in her case, Ms. Stephens’ unwavering commitment to workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit Court of Appeals, in one of the most nuanced examinations of sex discrimination ever issued.
The decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is best understood as a doctrinal correction to the current ideological drift in causation theory in discrimination law. Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII through causation analysis and anti-classification.
The law’s plain language prohibits discrimination against any individual “because of such individual’s…sex.” An employer generally cannot use an employee’s protected trait — here, her sex — to harm or otherwise disadvantage her. Under a different provision, the causation element of proving discrimination against an employee is a factual question due to other reasons employers may point to as the genuine, non-discriminatory reason for its action against the employee. In other words, it is a separate element from the trait element. Thus, “because of…sex” has been interpreted to encompass not only claims regarding women being passed over for men because they are women, but also contextual subordination that relies upon our sex trait, including gender stereotyping, sexual assault, quid pro quo sexual harassment, and hostile work environment. No less than race or religion, sex is a protected trait from which we infer meaning, and experience harm, based upon variable circumstances of time and place.
Thus, the Sixth Circuit unanimously held that “it is analytically impossible to fire an employee based upon that employee’s status” as a transgender person or lesbian employee “without being motivated, at least in part, by the employee’s sex.” But the panel took the farther step of affirming the non-binary sex spectrum. ***
However, buried in the Second Circuit’s en banc opinion in Zarda v. Altitude Express (also pending within the Title VII trio of cases the Court heard with Ms. Stephens’s case) was an outlier within the groundswell of courts seeking to course-correct causation analysis. There, a plurality ventured that a gay man’s status was the “but-for cause” of his dismissal, because if he had been a heterosexual woman married to a man, rather than a gay man, his status was determinative of the outcome. This theory, raised on appeal among other theories, conflates the social trait and causation elements of disparate treatment claims and thus competes with the approach of examining the social context of the sex trait. If misapplied to future sex and other trait discrimination cases, but-for causation could flatten existing sex discrimination analysis at a time when society has made significant strides toward recognizing intersex, non-binary, and gender-fluid people.
Shirley Lin, Dehumanization "Because of Sex": The Multiaxial Approach to the Title VII of Sexual Minorities, Lewis & Clark L. Rev. (forthcoming)
Although Title VII prohibits discrimination against any individual “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, however, many courts have read “sex” in Title VII as a socially defined trait and evaluate social construction of a protected trait before identifying causation when a court detects subordination. This Article builds on this judicial consensus by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination gives fuller effect to Title VII’s provisions and purposes as compared to sex stereotyping theory or the “but-for causation” method recently raised with the Supreme Court in the Title VII suits brought by gay and transgender plaintiffs. Uncoupling causation from the sex trait analysis will realize the statute’s civil rights protections as localities increasingly recognize the scope of sex beyond a fixed binary.
Monday, May 11, 2020
Conservatives have been trying to unwind the birth control benefit in the Affordable Care Act (ACA) for nearly a decade now, and the women justices on the U.S Supreme Court are over it.
That much was apparent during oral arguments Wednesday in Trump v. Pennsylvania and its companion case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
It’s the third time the Court has heard a challenge to the birth control benefit, which guarantees access to FDA-approved contraception methods at no additional cost or co-pay in most employer-sponsored health plans. But this case is the most absurd and dangerous challenge yet
Justice Ruth Bader Ginsburg drove that point home from the hospital, where she was recovering from a gallbladder procedure while defending the rights of hundreds of thousands of employees the Trump administration is trying to “toss to the winds entirely,” to use her words. Justice Sonia Sotomayor reminded Solicitor General Noel Francisco that should the Court side with the Trump administration, the benefits of around a hundred thousand employees (by even the most conservative estimate) would be in jeopardy. And Justice Elena Kagan appeared to be searching for a compromise she could get the chief justice to sign onto.
At its core is the same central question: Can your boss deny you health insurance coverage for contraception based on a religious objection? But these cases take that question and, like everything in the Trump years, extend it to absurd lengths by asking if your boss can deny you those same benefits based on a moral objection as well.
The moral exemption to the birth control benefit is a toxic addition inserted by the Trump administration three years ago after conservative efforts to upend the benefit in court fell flat. Trump announced the exemption in a Rose Garden ceremony flanked by the Little Sisters of the Poor, the nuns who would continue on as the face of the administration’s efforts to undermine the benefit. It was the kind of reality-TV spectacle that has come to define this administration—full of pomp, empty on substance, but with the potential to unleash an unfathomable amount of chaos in its wake.
And that’s precisely why the administration brought the nuns along. Someone has to sell this pile of garbage to the Roberts Court, and the nuns have proven more than willing to play along.
There is no world in which the nuns would have to provide contraception coverage for their employees. None. Not a single one. They are covered by exemptions, court orders, and a provision of employee benefits law that guarantees the federal government mostly stay out of their business. So when Paul Clement, the attorney representing the Little Sisters, suggested that the nuns would stop providing care to the elderly and poor should they have to simply fill out a form noting their objection to the benefit, I was glad to be covering the arguments from home. Had I been at the Court, I definitely would have been ejected for the spontaneous, “OH COME THE FUCK ON, PAUL” that response requires.
Turns out, I’m as fed up with these cases as the women justices of the Court.
Tuesday, May 5, 2020
Historic First SCOTUS Phone Arguments Involve Two Women Attorneys, Bringing Brief Gender Equality to the Judicial Forum
And with that, the Supreme Court made history Monday, hearing arguments by telephone and allowing the world to listen in live, both for the first time.
The arguments were essentially a high-profile phone discussion with the nine justices and two arguing lawyers. The session went remarkably smoothly, notable for a high court that prizes tradition and only reluctantly changes the way it operates.***
The court chose a somewhat obscure case about whether the travel website Booking.com can trademark its name for its first foray into remote arguments. The more high-profile arguments come next week.***
Roberts asked the first questions of government attorney Erica Ross, who was arguing that Booking.com should not be allowed to trademark its name because it is a generic term followed by “.com.” The justices then asked questions in order of seniority instead of the usual free-for-all, rapid-fire style that questions are asked in the courtroom. That meant Justice Brett Kavanaugh, who joined the court in 2018, went last.
One mild surprise came early in the arguments when Roberts passed the questioning to Justice Clarence Thomas, who once went 10 years between questions and has said he thinks his colleagues pepper lawyers with too many. But in this format, Thomas spoke up, asking questions of both lawyers. It was the first time in more than a year that he had asked a question.***
Several justices said “good morning” to the lawyers, a telephone nicety not often heard in the courtroom. And Roberts occasionally interjected to keep things moving, saying, “Thank you, counsel,” when he wanted Ross or Booking.com’s lawyer Lisa Blatt to stop talking so he could move to the next justice.
“It is a fundamental principle of trademark law that no party can obtain a trademark for a generic term like ‘wine,’ ‘cotton,’ or ‘grain,’” Ross told the justices, pointing them to an 1888 Supreme Court case in which the justices ruled that adding a word like ”Company” or “Inc.” to a generic term doesn’t make it eligible to be trademarked.
Some of the exchanges were playful, as happens from time to time in the courtroom. Breyer used pizza.com and cookies.com as examples of websites and discussed with Blatt searching on the internet for toilet paper.
The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: g ender equality.
Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.
Tuesday, April 7, 2020
Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, U. Penn. L. Rev. (forthcoming)
In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated.
Friday, February 28, 2020
Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge Univ. Press 2020)
With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.
Wednesday, January 22, 2020
History of ERA Passage
The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979. Congress extended the deadline to 1982. President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote. See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977).
Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states. Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment. Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states. Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.
Current Challenges to ERA Ratification
In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted. Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019). They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.
The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA. Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020) The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.
Arguments in Support of Ratification Today
So what do proponents of ERA say? There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.
1. The original deadline is not mandatory.
a. Deadlines are not required for constitutional amendments. The first 17 amendments did not have a deadline.
b. The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore is not binding as part of the ratification.
c. The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect. In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.
i. The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect. Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention.
ii. Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years. The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect. It was originally proposed in 1789 as the Second Amendment. While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.
2. Congress has the power to modify the deadline
a. The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify. As a procedural matter, only a majority of the congressional houses is required.
b. The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.
c. The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed. In Coleman, the Child Labor Amendment was pending for thirteen years. It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states.
d. Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.
If the deadline does not apply, then the question is whether states can rescind their past ratification. The precedent of the Fourteenth Amendment suggests no. Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable.
In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided). The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.
Monday, December 9, 2019
Wednesday, November 20, 2019
The US Supreme Court on Friday accepted a Justice Department appeal to review the cases of three men in the Air Force whose rape convictions were overturned last year -- including one whose confession the Air Force recorded -- when the top military appeals court found a five-year statute of limitations existed for military sexual assault before 2006.The Supreme Court arguments will be scheduled for next spring and a ruling is likely by the end of June.This will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.***At the heart of the dispute is a ruling made last year by the Court of Appeals for the Armed Forces, the military's top appeals court, in a separate alleged rape case called US v. Mangahas.The Mangahas decision prohibited prosecutors from bringing charges for rape that happened before 2006 unless the offense had been reported and charged within five years.The Supreme Court will now interpret whether a five-year statute of limitations or no time limit should exist for the prosecution of military sexual assault for cases between 1986 and 2006.
The U.S. Supreme Court has agreed to hear the federal government’s case against a military court ruling that reversed several military rape convictions for crimes committed more than a decade or two ago.
The controversial decision by the U.S. Court of Appeals for the Armed Forces, based on previous court decisions, placed a 5-year time limit on prosecuting crimes of rape that occurred between 1986 and 2006.
The case, United States v. Briggs, is a consolidation of filings named for Air Force Lt. Col. Michael Briggs who, in 2014, was convicted of raping a staff sergeant in 2005. The case came to light after Briggs called the victim in 2013 to confess — a conversation the victim recorded.
“I will always be sorry for raping you,” he told her, according to court documents.
The recording was key to bringing Briggs to trial and he was prosecuted under the assumption that there was no statute of limitations for pursuing rape cases in the military. He was found guilty, sentenced to five months confinement and dismissed from the service.
Years before the Briggs case, the Uniformed Code of Military Justice held that rape was a crime punishable by death and therefore had no time limit for prosecuting the crime. But in 1998, the U.S. Court of Appeals for the Armed Forces, or CAAF, ruled that some rape charges were not punishable by death, and the standard five-year limit for prosecuting most crimes was instated.
In 2006, however, Congress amended Uniformed Code of Military Justice to ensure that the time limit for rape cases was abolished. Briggs’s conviction, as well as others, came after the law was changed.
But in February 2018, the military appeals court affirmed the statute of limitations for cases that occurred in a gray area under the law, from 1986 to 2006.
Monday, November 18, 2019
Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***
The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).
The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***
The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)
In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***
At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.)
Wednesday, October 23, 2019
Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***
Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***
In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***
At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.