Wednesday, June 5, 2019
Leser v. Garnett, 258 U.S. 130 (1922) - challenging the validity of the 19th Amendment and seeking to strike women voters, cursorily dismissed
Adkins v. Children's Hospital of D.C., 261 U.S. 525 (1923) - interpreting the 19th Amendment broadly as a structural guarantee of gender equality in society
For more on these cases, see Tracy Thomas, More Than the Vote: The 19th Amendment as Proxy for Gender Equality, Stanford J. Civil Rights & Civil Liberties (forthcoming) and Reva Siegel, She the People: The Nineteenth Amendment: Sex Equality, and Federalism, 115 Harv. L. Rev. 947 (2002).
Tuesday, June 4, 2019
The Supreme Court decided Box v. Planned Parenthood without full briefing or oral argument and issuing a per curiam opinion. It upheld Indiana's fetal remains law, but denied cert on the second question regarding the law prohibiting abortion for fetal diagnosis or disability. Justice Sotomayor would have denied cert on both questions. Justice Ginsburg dissented, and would have applied a higher standard of scrutiny because the case implicated “the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Justice Thomas dissented from the denial of cert on the second question. Ginsburg criticized Thomas' opinion, saying it "displays more heat than light."
The Supreme Court on Tuesday agreed to a compromise on Indiana’s contested abortion law, an outcome that revealed its openness to state restrictions on the procedure but also apparently favored a cautious and incremental path in confronting one of the nation’s enduring controversies.
On one hand, the court upheld a part of Indiana’s 2016 law that places new restrictions on the disposal of fetal remains after an abortion. It reversed a decision by a lower court without the customary briefing and oral arguments.
But the court said it would not revive another part of the law, which would have prohibited abortions if the woman chose the procedure because of a diagnosis or “potential diagnosis” of Down syndrome or “any other disability,” or because of the fetus’s gender or race.
The Indiana case was closely watched because it was the first time the conservative court, reinforced by the addition of President Trump’s two nominees, had the opportunity to take a case with consequences for the constitutional protections found in Roe v. Wade and Planned Parenthood v. Casey.
Tuesday’s decision in Box v. Planned Parenthood of Indiana and Kentuckyheld no consequences for either Roe or Casey. But it appeared to be a commencement of the new court’s consideration of abortion rights, and many cases are waiting in the wings.***
The unsigned opinion of the court, just three pages long, was matter-of-fact and devoid of broad holdings. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have let the lower court’s rejections stay in place; fellow liberals Stephen G. Breyer and Elena Kagan were silent.
But there were signs of tension. Justice Clarence Thomas wrote a 20-page statement linking abortion to the eugenics policies popular in the 19th and early 20th centuries. He added in a footnote that Ginsburg’s objection to the fetal-remains portion of the law “makes little sense.”
She responded by correcting his use of the word “mother” throughout his opinion. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’ ” she wrote.
The portion of the Indiana law the court allowed to go into effect mandates that the “remains” of an abortion or miscarriage be buried or cremated, as required of other human remains.
See Mary Ziegler, What Clarence Thomas Gets Wrong About Abortion and Eugenics
This is a dark history, but it is not the tidy, simple one that Thomas describes. Many population controllers actually opposed legal abortion or viewed it as irrelevant. They shared the worries of their eugenicist forbears that giving women a choice would not do enough to reduce demographic growth.
More important, many in the population control movement had no interest in eugenics. Cold warriors hoped that curbing demographic growth would prevent developing countries from turning to communism. Environmentalists believed that population control could conserve scarce environmental resources. And feminists believed that population control could facilitate the liberation of women.
The converse was also true: Unlike the synergy of belief conveyed by Thomas, some abortion rights supporters had no use for population rhetoric, viewing it as unethical and counterproductive, regardless of the political benefits. Contrary to what Thomas suggests, these voices grew louder after Roe, when feminists took on more influential roles in major abortion rights organizations. These groups understood that population arguments could smack of coercion — antithetical to their beliefs about choice and freedom — and alienate people of color both in the United States and in developing countries. And feminists increasingly argued that women had a right to abortion regardless of its policy consequences.
Thursday, May 16, 2019
Marcia Coyle, The Justices Had 5 Votes to Overturn Roe in 1992. Why That Didn't Happen, Natl L. J.
In 1992, anti-abortion groups thought they had a winning case in defense of a restrictive Pennsylvania state law. There appeared to be five votes on the U.S. Supreme Court to overrule the landmark decision Roe v. Wade, but that did not happen. As Alabama and Missouri lawmakers adopt strict anti-abortion laws, and predict successful outcomes at the high court, history provides some lessons: Never bet on what occurs behind the high court’s closed conference doors.
After oral arguments in Planned Parenthood of S.E. Pennsylvania v. Casey, Justices Harry Blackmun and John Paul Stevens believed the 1973 ruling in Roe was doomed.
Stevens, writing in his newly published book, “The Making of a Justice,” said the justices, except for him and Blackmun, agreed the U.S. Court of Appeals for the Third Circuit correctly upheld all of the challenged abortion restrictions—save for one, which required a married woman to certify she had notified her husband of her intent to have an abortion.
The Casey case, which affirmed Roe’s central holding, is getting renewed attention today for the standard the decision set for determining whether a state law posed an “undue burden” on a woman’s right to get an abortion. The justices are weighing several abortion-related challenges, and separately, new laws passed by Alabama and other Republican-led states could tee up direct challenges to Roe in the coming months.
Several new books, including the one from Stevens, offer a glimpse behind the scenes at how the Pennsylvania case was resolved and why caution is warranted in predicting the outcome in the most contentious cases.
“Harry and I both assumed that the result [in Casey] would be explained in an opinion overruling Roe v. Wade,” Stevens wrote in his autobiography, published this week.
In fact, at the justices’ private conference, Chief Justice William Rehnquist counted five votes to reverse Roe, and he assigned the court’s opinion to himself, according to journalist Evan Thomas in his new book, “First,” a biography of Sandra Day O’Connor.
States Quickly Passing Restrictive Abortion Bans to Challenge Supreme Court Precedent Recognizing Women's Right of Bodily Autonomy
Alabama Gov. Kay Ivey signed a controversial bill that bans nearly all abortions into law Wednesday evening.
It's considered the most restrictive abortion law in the United States. The law makes it a crime for doctors to perform abortions at any stage of a pregnancy, unless a woman's life is threatened or there is a lethal fetal anomaly.
Under the new law, doctors in the state face felony jail time up to 99 years if convicted. But a woman would not be held criminally liable for having an abortion.
The law does not take effect for several months.
Late Tuesday night, Alabama legislators passed a bill that would outlaw abortion at any stage in a woman’s pregnancy. They’re in good company: Earlier in May, Georgia Governor Brian Kemp signed a law making abortion illegal after a fetal heartbeat can be detected, or roughly six weeks after conception. Ohio, Mississippi, and Kentucky have all passed similar bills this year.
The state legislators who are passing these bills know they will be challenged in court. They also know they will probably lose. But their sights appear to be set higher than their state jurisdictions: With a solidly conservative majority on the Supreme Court, anti-abortion advocates are eager to seed the challenge that could one day take down Roe v. Wade, the 1973 opinion that legalized abortion up to the point of fetal viability. At the very least, they hope the Supreme Court will undercut Roe and subsequent decisions that reaffirmed abortion rights, the idea being that each legal challenge makes it a little harder to obtain an abortion in the United States.
Georgia, Kentucky, Mississippi and Ohio stopped short of outright bans, instead passing so-called heartbeat bills that effectively prohibit abortions after six weeks of pregnancy, when doctors can usually start detecting a fetal heartbeat. Utah and Arkansas voted to limit the procedure to the middle of the second trimester.
Most other states follow the standard set by the Supreme Court’s Roe decision in 1973, which says abortion is legal until the fetus reaches viability, usually at 24 to 28 weeks.
The latest bans are not yet in effect (Kentucky’s was blocked by a judge), and all are expected to face lengthy court battles — indeed, their proponents are hoping they will reach the Supreme Court.
A new law in Alabama bans abortion from conception, except when necessary to prevent a serious health risk to the mother. and even then, access to the procedure would be hard to come by.
The legislation joins a string of measures in pro-life states that are clearly unconstitutional under Roe v. Wade. But the bills' backers are betting the U.S. Supreme Court's new five-justice conservative majority is ready to reverse the 46-year-old precedent.
Under Supreme Court precedent, states can't unduly burden—let alone ban—abortion before fetal viability (generally at 23 or 24 weeks of pregnancy.)
In Ohio, the ACLU and Planned Parenthood have filed suit to block that state's six-week abortion ban, which is set to go into effect in July.
But with Georgia's governor signing into law another six-week ban last week, abortion opponents are confident they have the high court on their side.
The court last affirmed abortion rights in 2016. But Justice Brett Kavanaugh, a conservative, replaced swing Justice Anthony Kennedy, which changed the calculus, according to Professor Caroline Mala Corbin of the University of Miami School of Law.
"The newly configured Supreme Court has given hope to many abortion opponents that they will finally have their way and the right to abortion will be eliminated as a constitutional right," Corbin told FOX 5 NY.
Friday, May 3, 2019
Deborah Widiss, Young v. United Parcel Services, Inc., Rewritten, in Feminist Judgments: Employment Discrimination Opinions Rewritten (Ann C. McGinley & Nicole B. Porter, eds., Cambridge Univ. Press, 2019, forthcoming).
Young v. United Parcel Services, 135 S. Ct. 1338 (2015), is appropriately considered a win for women because it expanded opportunities for pregnant employees to receive workplace accommodations. However, the case could have been far more transformative, both in how it interpreted the law and in how it explained why it matters for working women. This “rewritten” version, forthcoming in an edited volume, imagines what Young might have said if it were written from a feminist perspective.
The Supreme Court’s actual decision instructs lower courts to assess whether an employer’s refusal to provide an accommodation is infected by discriminatory bias. The rewritten decision, by contrast, argues the plain language of the Pregnancy Discrimination Act makes intent irrelevant, so long as a pregnant employee can show that other workers with similar limitations receive more favorable treatment. This interpretation is better supported by the text of the statute, as well as its history and purpose. The Equal Employment Opportunity Commission also endorsed this interpretation, and the rewritten opinion shows why deference was warranted.
Finally, the rewritten opinion rejects the contention, articulated by the Court in the actual Young decision, that this interpretation affords pregnant women a “most favored nation” status. This allegation suggests accommodating male workers is an ordinary cost of business, but costs relating to pregnancy are special costs that employers should not have to bear. The PDA’s comparative structure was intended to counteract such assumptions and the still-pervasive belief that pregnant women are less capable or less committed than other employees.
Readers may also be interested in my more traditional academic scholarship on this subject: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013) (https://ssrn.com/abstract=2221332) and The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS, 50 U.C. Davis L. Rev. 1423 (2017) (https://ssrn.com/abstract=2948666).
Monday, April 22, 2019
Supreme Court Grants Cert to Resolve Circuit Split on Whether LGBTQ Bias is "Sex" Discrimination under Title VII
The US Supreme Court granted cert today in Altitude Express v. Zarda, RG & GR Harris Funeral Homes v. EEOC, and Bostock v. Clayton County on the question of "Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)."
The Supreme Court on Monday added what could be landmark issues to its docket for the next term: whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.
The court accepted three cases for the term that begins in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.
The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.
At least nine federal circuit courts ruled in decisions prior to 2007 that sexual orientation wasn’t covered by Title VII of the 1964 Civil Rights Act, which prohibits bias against workers and job applicants based on their “sex.” The tide began to shift in 2015, when the Equal Employment Opportunity Commission decided in a federal sector case that Title VII does apply to sexual orientation.
In a groundbreaking decision in 2017, the U.S. Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII covers sexual orientation when it said a lesbian job applicant could sue an Indiana community college for discrimination. While the Eleventh Circuit decided earlier that year that the law doesn’t apply to sexual orientation, the Second Circuit deepened the split in the courts with its 2018 ruling that it does.
The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.***
The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).
Thursday, February 21, 2019
Discussions of due process often focus on individualizing trials in order to provide persons an opportunity to be heard. In keeping with this traditional understanding, Justice Antonin Scalia’s majority opinion denying class certification in Wal-Mart v. Dukes describes class actions as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” This Comment grapples with the normative implications of the American legal focus on individualized (rather than collective) adjudication. It argues that the “usual rule” of individualized adjudication makes it much more difficult for the American legal system to adequately evaluate claims of widespread discrimination. When such claims arise from the behavior of numerous bad actors operating within an institutional context, the adjudicative focus on individuality tends to obscure how oppressive institutional dynamics have made the discrimination possible. These dynamics often only become evident when individual experiences are considered in the aggregate, in two key ways. First, as the #MeToo movement shows, aggregation of claims results in believability: one woman accusing a powerful man of sexual misconduct can be easily dismissed, but hundreds of accusers are more difficult to ignore. Second, aggregating claims can often demonstrate the institutional dimension of discrimination, proving that discriminatory behavior is not due to a single bad actor, but rather has been enabled by institutional structures that must be changed to prevent the behavior from recurring.
Monday, January 28, 2019
On the horizon is the possible 38th state ratification of the ERA. Legislative action pending in Virginia, North Carolina, and Minnesota makes this likely. The question is whether this will matter given the expired deadline.
The original ERA passed by Congress in 1972 had a 7 year deadline. Congress, with the assent of the president, then extended that deadline in 1979, prior to its expiration, by 3 years to 1982.
There are several arguments now as to why the 1982 deadline does not apply:
1. The original ERA deadline was constitutionally invalid because (a) Article V says nothing about permitting time restriction on amendment (but see Dillion v. Glass); or (b) the ratification of the 27th Amendment after a 203 gap overrules Dillion v. Glass and the judicially-created mandate that ratification be sufficiently contemporaneous; or (c) it was contained in the introductory preamble to the amendment rather than the substantive text of the amendment itself which distinguishes the holding in Dillion that Congress may impose amendment deadlines in determining the mode of amendment. Without a deadline, the amendment, per Article V "shall be valid for all Intents and Purposes" upon ratification by the 38th state.
2. Congress retains the power to alter its original ERA deadline by waiver, repeal, and/or extension because the deadline is not contained in the substantive text of the amendment and because it has already passed one such extension.
3. Congress has the power to conduct a post-ratification acceptance of the amendment (so-called Coleman analysis).
4. The modern precedent of the 27th Amendment regarding salary increases for members of Congress and its 203 year gap in ratification provides strong precedent for a gap in ratification and calls into doubt the the limited judicial acceptance of amendment deadlines.
The basic arguments are made here, Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, Note, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 William & Mary J. Women & Law 113 (1997);
Then-Professor Ruth Bader Ginsburg addressed some of these issues when considering the propriety of the extension of the ERA deadline in 1979. Ratification of the Equal Rights Amendment: A Question of Time, 57 Texas L. Rev. 919 (1979) [Westlaw Link]; see also Jean Witter, Extending Ratification Time for the Equal Rights Amendment Constitutionality of Time Limitations in the Federal Amending Process, 4 Women's Rights L. Rep. 209 (1978).
Limitation periods have accompanied only the more recent constitutional amendments. Congress specified no time frame for ratification of the first seventeen amendments. When the eighteenth amendment (Prohibition) was before Congress, legislators expressed concern about proposed amendments “floating around in a cloudy, nebulous, hazy way.” That was unseemly, Senator Ashurst said: “10, 12, 14, 16, 18, or even 20 years,” he ventured, might be a reasonable period for ratification, but Congress should provide a check against handing down to posterity proposals submitted to the states many decades earlier.Without extensive discussion of the time span suitable generally or in the particular context, Congress specified seven years for ratification of the Prohibition amendment. The same seven year period was specified, without fresh debate, for amendments twenty through twenty-six. But significantly, Congress sent the nineteenth amendment (Woman's Suffrage) to the states without a ratification time frame. The suffragists, who had struggled for the better part of a century to win the vote for women through state-by-state campaigns, resisted a deadline for the federal amendment.Suffragists still with us in 1970 argued against a time limit for the ERA. They wanted to keep the pattern consistent with the nineteenth amendment. But principal congressional proponents of the ERA accepted addition of a seven year specification to the proposing clause that preceded the text of the amendment. They thought the stipulation innocuous, a “customary” statute of limitations, not a matter of substance worth opposing. The nineteenth amendment, after all, was proposed in 1919 and ratified in 1920. No amendment now part of the Constitution had taken even four years to be ratified. [But since then, the 27th Amendment had 203 years]. ***Few participants in the extension debate questioned the authority of Congress to specify initially a decade or more for ratification of the ERA, or to say nothing at the outset regarding a time frame. The issue was whether Congress, having said seven years, was locked into that specification, essentially, whether Congress could establish in two steps a time frame it might have set in one. Relevant to resolution of this threshold issue was the placement of the time limitation.Congress fixed the time for ratification in the text of the eighteenth, twentieth, twenty-first, and twenty-second amendments. That placement appeared to make the time provision an inseparable part of the proposed addition to the Constitution submitted to the states for approval. Amendments later proposed, including the ERA, contained no time limitation in the “Article of Amendment.” Instead, the limitation was separated from the text of the amendment and placed in the proposing clause.The change from text to proposing clause was effected largely to avoid “cluttering up” the Constitution with vestigial provisions serving no function once an amendment was ratified. But the very judgment that the limitation should be transferred from text to preamble may reflect an underlying recognition that setting a time for ratification entails a determination qualitatively different from agreement on the substantive content of an amendment.Apart from the acknowledged purpose of the time limitation—to inter proposed amendments grown stale through the passage of time—and the “placement” argument—that a time provision placed in the proposing clause forms no part of the amendment text submitted to the states for ratification— what support did Congress draw upon in making the judgment to extend the time for state consideration of the ERA? Article V, the terse amendment provision of the Constitution, is silent on the period for ratification. But the Supreme Court has drawn two base lines.In 1921 the Court ruled in Dillon v. Gloss25 that article V implicitly requires occurrence of ratification within a reasonable time. Dillon sustained the power of Congress to set a time for ratification in the text of the Prohibition amendment.What time span is reasonable? The Court addressed that issue in 1939 in Coleman v. Miller, it held that determination of the limitation period calls for an eminently legislative judgment, one for Congress to make. Coleman involved, inter alia, a claim that by 1937 the Child Labor amendment, proposed by Congress in 1924 without a ratification time limit, was dead—no longer open for ratification. Congress is uniquely equipped to decide the timeliness question, Chief Justice Hughes wrote, because of its “full knowledge and appreciation ... of the political, social and economic conditions which have prevailed during the period since the submission of the amendment.”When the ERA was proposed, Congress had no fine crystal ball to forecast the political, social, and economic conditions prevailing in the ensuing years. At best, Congress could make only an estimate in 1972. Was Congress disabled in 1978 from deciding that it estimated incorrectly when it specified for the ERA the time frame used for amendments more readily comprehended and less vulnerable to distortion—the vote for eighteen-year-olds, the order of succession to the Presidency, prohibition of a poll tax—to take the most recent examples?Some extension opponents urged that Congress exhausts its authority once it proposes an amendment and designates the mode of ratification. At that point, so the argument goes, the process is entrusted entirely to the states. Just as Congress, after submitting an amendment to the states, may not change the wording of the text or the mode of ratification, so it may not alter the time frame.But the view that “the only Congress that has power over any particular amendment is the Congress that proposed it,” and even that Congress, only up to the moment of proposal, seems shortsighted. Unquestionably, when a limitation period is not fixed in advance, the “reasonable time” appraisal must be made by Congress after submitting the amendment to the states. Coleman v. Miller also appears to indicate that even when a time period is set by the proposing Congress, it is within the province of a later Congress to decide that a reasonable time had elapsed prior to the deadline day, because conditions had so changed that the amendment was “no longer responsive to the conception which inspired it.” Other questions too may arise post submission, for example, the efficacy of a purported rescission, or the validity of a state-imposed rule requiring for ratification a three-fifths vote of the legislature. Is Congress disarmed, is it barred from addressing such questions if it does not anticipate and resolve them before submitting a proposed amendment to the states?Most constitutional law teachers consulted by Congress while the extension measure was pending, whether they supported or opposed the measure, agreed on the threshold question—Congress has authority to extend a ratification time limit. Dillon and Coleman had bracketed the issue. Dillon held Congress could deal with timeliness at the outset, Coleman confirmed Congress could “wait and see,” deferring the question until “the time arrives for the promulgation of the adoption of the amendment.” Extension indicated a middle course: a time frame intended to ensure the proposed amendment would not roam around state legislatures indefinitely was enlarged upon a congressional determination that “the public interests and changing conditions” so warranted. Absent this continuing evaluation and control by Congress, a time limit in a proposing clause could be cut loose from its function. The limitation could inter a proposed amendment that remained vibrant, as the Supreme Court put it in Coleman, fully “responsive to the conception which inspired it.”
[T]here's a big question as to whether or not the ERA would just automatically become the 28th amendment. The deadline is a problem. For about a decade after the deadline passed in 1982, it was assumed that the ERA was dead. But something very interesting happened in our constitution, which was that in 1992, the 27th Amendment became part of the constitution. That amendment prohibits laws varying the compensation of members of Congress until an election cycle, and it was adopted by Congress and sent to the states for ratification under Article Five in 1789 along with the original Bill of Rights. But unlike the other rights in the Bill of Rights, only seven states ratified it within the 18th century, and an eighth state ratified in 1873. But a revival movement took shape in the 1980s, in part due to the mobilization of an undergrad who wrote a paper about it and received a C, but then started a letter-writing campaign to various state legislators, saying we can ratify this. There was no deadline. And then 38 states did ratify by 1992, and interestingly, additional states have continued to ratify even after 1992, even after we got to 38 and added it to the U.S. Constitution. So the 27th Amendment became part of the U.S. Constitution 202 years after it was sent to the states for ratification. So this makes it at least possible to imagine the ERA now becoming part of the constitution, if only we could do something about that deadline.
The ERA deadline was not part of the text of the amendment itself. Note that in the Prohibition Amendment, the ratification deadline was part of the text. But because the deadline wasn't part of the text of the ERA, now it's argued that Congress can just accept the ratifications and decide to repeal the deadline or just change the deadline, with bills introduced to that effect. Then, those post-deadline ratifications would be valid, and the ERA would come into effect.
These were the circumstances in the light of which Congress in proposing the Eighteenth Amendment fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both houses was that some limitation was intended and that seven years was a reasonable period.That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired, it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on the application of two-thirds of the states Congress shall call a convention for the purpose. When proposed in either mode amendments to be effective must be ratified by the Legislatures, or by conventions, in three-fourths of the states, ‘as the one or the other mode of ratification may be proposed by the Congress.’ Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all.We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson ‘that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.’ That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal.Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests**513 and changing conditions may require; and article 5 is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
The question of whether it is a proper exercise of congressional authority under article V to alter a previously proposed time limitation for ratification, and if so by what majority, presents for the Court a question of constitutional interpretation of congressional authority, and an inquiry into the procedural aspects of exercising that power. Thus, the Court's inquiry is two-fold: First, does Congress under its power to “propose” the “Mode of Ratification” have the power to change its proposal once it has been made and sent to the states; second, if the initial proposal can be subsequently changed, may Congress act by less than a two-thirds majority. One related question that has been raised that should be dealt with at this time is whether or not a state's ratification resolution specifically acknowledging the ratification period set by Congress is impaired if the original time period is extended or whether it is a “conditional” ratification arguably prohibited by the amendment process.To begin with, the actions of Congress in relation to a proposed amendment must be properly characterized in order to approach the questions presented. First, it must be recognized that Congress' power to participate in the amendment process stems solely from article V. As Justice Stevens noted, “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution ....” Dyer v. Blair, 390 F.Supp. 1291, 1303 (N.D.Ill.1975) (emphasis added). Thus Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I. The power of Congress to set a time period in which ratification must be completed is derived from their function of setting the mode of ratification. See Dillon v. Gloss, 256 U.S. 368, 376, 41 S.Ct. 510, 513, 65 L.Ed. 994 (1921). The defendant in this action attempts to create a substance/procedure dichotomy by contending that since the time restriction in this instance is part of the proposing resolution it is proper for reconsideration where if the time period were part of the amendment itself it would not be. The argument follows that a change of a substantive aspect of an amendment is clearly improper once it has been submitted to the states, but a change in the proposing resolution, on the other hand, does not change the essential nature of the amendment and thus is a matter of detail which Congress can change at will. The Supreme Court in Dillon v. Gloss, supra, had an opportunity to address this substance/procedure dichotomy when the eighteenth amendment was challenged on the grounds that the seven-year ratification period called for in Section 3 of that amendment was unconstitutional. While the Dillon court indicated that “(a)n examination of article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments”, Id. at 373, 41 S.Ct. at 512, the court did not recognize the setting of the time limitation as being a function of Congress' power to propose amendments but instead indicated that(w)hether a definite period for ratification should be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.Id. at 376, 41 S.Ct. at 513 (emphasis added).The court did not recognize a substance/procedure dichotomy and thus any authority to limit the time period for consideration must flow from the Congress' power to set the mode of ratification. Accordingly, the Court's attention is drawn to a consideration of Congress' power to set and change the time period for ratification under its power to set the mode of ratification.The United States Supreme Court in United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) recognized that Congress has absolute discretion within its power to propose the mode of ratification to establish which of the two local entities will act as the spokesman for the people. The Supreme Court in the Dillon and Coleman cases found that as a “subsidiary matter of detail” to this congressional prerogative, Congress must also determine whether or not the local expressions of consent are “sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period ....” Dillon 256 U.S. at 375, 41 S.Ct. at 512. In making its determination that the requisite consensus has been reached in a sufficiently contemporaneous period, the Supreme Court in Coleman, supra, indicated that if no time restriction is set initially, Congress retains its authority *1152 to decide that issue when the requisite number of states have acted.Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.Id. 307 U.S. at 454, 59 S.Ct. at 982. The court in Dillon further clarified the scope of Congress' power by indicating that while Congress is not compelled to make a determination of a reasonable time period in advance of the actions of the requisite number of states, it is not precluded from doing so. The Dillon court held that Congress may fix a reasonable time in advance “so that all may know what it is and speculation ... be avoided.” Id. 256 U.S. at 376, 41 S.Ct. at 513. It should be noted that the Dillon court did not intimate that the setting of a definite time period was a projection or preliminary assessment of a reasonable time period which would be re-evaluated as time passed. Rather, the Court indicated that the exercise of Congress' power to set a time period for ratification is one which is intended to infuse certainty into an area which is inherently vague. Thus the inference that can be drawn from Dillon and Coleman is that within Congress' role of determining a reasonably contemporaneous consensus, or in other words, determining whether the socio/political, economic forces giving rise to the amendment remain alive and unchanged during the period in which the states act in giving their assent to the proposal, Congress may exercise its function in one of two ways: first, it can leave the question of a reasonable time open until the requisite number of states have acted and thus continually monitor the viability of the amendment; second, where it appears to Congress that the socio/political, economic factors giving rise to the amendment are such that they are unlikely to change for an indefinite period of time, and rather than have the proposed amendment pending perpetually, Congress can set an arbitrary yet reasonable time period in order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-“so all may know and speculation ... be avoided”-the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment requires ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until three-fourths of the states have acted.
Tuesday, January 22, 2019
Supreme Court Stays Injunctions, Allowing Transgender Military Ban to Go into Effect Temporarily while Lawsuit Continues
The Supreme Court on Tuesday allowed President Trump’s broad restrictions on transgender people serving in the military to go into effect while the legal battle continues in lower courts.
The justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.
It reversed an Obama-administration rule that would have opened the military to transgender men and women, and instead barred those who identify with a gender different from the one assigned at birth and who are seeking to transition.
The court’s five conservatives--Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh--allowed the restrictions to go into effect while the court decides to whether to consider the merits of the case.
The liberal justices--Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan--would have kept the injunctions in place.
Trump surprised even his own military advisers in July 2017 when he announced a sweeping ban on transgender people’s military service via Twitter. He cited what he viewed as the “tremendous medical costs and disruption.” The administration’s order reversed President Barack Obama’s policy of allowing transgender men and women to serve openly and receive funding for sex-reassignment surgery.
Attorneys for active-duty service members went to court to block the policy shift, which could subject current transgender service members to discharge and deny them certain medical care.
Thursday, January 17, 2019
The Ginsburg Tapes is a podcast about Ruth Bader Ginsburg’s oral arguments in the Supreme Court—before she became #NotoriousRBG.
Specifically, from 1972-1978, Ginsburg argued six cases in the Supreme Court. In each case, she and the ACLU Women’s Rights Project brought constitutional challenges to laws treating men and women differently. Ginsburg’s goal was to show the ways in which laws which seemed on their face to benefit women actually perpetuated stereotypes and held women back from full participation in American life.
For all six cases, Lauren breaks down the real recordings of the oral arguments. The tapes allow listeners to be a fly on the wall, to teleport to that moment in history. Listeners can hear Ginsburg make her case, and listen to reactions from the all-male Supreme Court. You’ll hear from liberal icons like Justice Thurgood Marshall and Justice William Brennan, and conservative icons like Chief Justice Warren Burger and then-Justice William Rehnquist, as they grapple out loud with what the Constitution means. In each episode, Lauren talks about history, effective advocacy, constitutional change, the power of the Supreme Court, and gender equality.
Tuesday, January 15, 2019
Catherine Martin Christopher, Nevertheless She Persisted: Comparing Roe v. Wade's Two Oral Arguments, 49 Seton Hall L. Rev. 307 (2018).
There is a longstanding and popular sentiment in the legal profession that oral arguments do not really matter; rather, everything rides on the written briefs. This Article takes that old adage head on, and does so through analysis of one of the most controversial cases ever decided by the United States Supreme Court: Roe v. Wade. It is a little-known fact that Roe was argued before the Court not once, but twice, which presents a unique opportunity to consider the place and power of oral arguments in Supreme Court jurisprudence.
This Article offers a comprehensive analysis and critique of the two oral arguments in Roe. The Article first analyzes the oral arguments pragmatically, undertaking a scholarly investigation of the arguments to investigate their impact on the majority opinion. Next, the Article proceeds theoretically, engaging in a feminist legal theory analysis to assess how the Roe arguments were both a product of their time and shaped feminist legal theory going forward.
Monday, January 14, 2019
Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.
5th Circuit Decision Below at Justia: Davis v. Fort Bend County (5th Cir. 2018)
Davis filed a complaint with the Fort Bend County Human Resources Department alleging that a director had sexually harassed and assaulted her. An investigation led to the director’s resignation. According to Davis, her supervisor retaliated because the director was a personal friend of Davis's supervisor. Davis informed her supervisor that she could not work one specific Sunday because she had a "commitment” to attend a special church service. Her supervisor did not approve the absence. Davis attended the service and did not report to work. Fort Bend terminated her employment. Davis filed a charge with the Texas Workforce Commission then filed suit under Title VII. The Fifth Circuit affirmed summary judgment on her retaliation claim but reversed on her religious discrimination claim, finding genuine disputes of material fact as to whether Davis held a bona fide religious belief that she needed to attend the service and Fort Bend would have suffered an undue hardship in accommodating Davis’s religious observance. The Supreme Court denied Fort Bend’s petition for certiorari. On remand, Fort Bend argued—for the first time— that Davis had failed to exhaust her administrative remedies. Holding that administrative exhaustion is a jurisdictional prerequisite in Title VII cases, the district court found Davis’s contention that Fort Bend had waived this argument “irrelevant.” The Fifth Circuit again reversed. Title VII’s administrative exhaustion requirement is not a jurisdictional bar but rather a prudential prerequisite and Fort Bend forfeited the argument.
Monday, November 19, 2018
Justice Sonia Sotomayor in an interview with CNN's David Axelrod said that Justice Brett Kavanaugh was welcomed into the Supreme Court "family" in the wake of his polarizing confirmation process.
When you're charged with working together for most of the remainder of your life, you have to create a relationship," Sotomayor said in an "Axe Files" interview airing Saturday."The nine of us are now a family and we're a family with each of us our own burdens and our own obligations to others, but this is our work family, and it's just as important as our personal family. * * *Sotomayor said despite the contentious confirmation, she told Kavanaugh that the focus on him will settle on his actions as part of the court."It was Justice (Clarence) Thomas who tells me that when he first came to the Court, another justice approached him and said, 'I judge you by what you do here. Welcome.' And I repeated that story to Justice Kavanaugh when I first greeted him here," she said. * * *Sotomayor, who was first confirmed to the court in 2009, also pushed back on the notion that Kavanaugh's presence cements a conservative tilt on the Court -- an institution she said is above "political terms.""Conservative, liberal, those are political terms," she said. "Do I suspect that I might be dissenting a bit more? Possibly, but I still have two relatively new colleagues, one very new colleague, Brett Kavanaugh and Neil Gorsuch. And we've agreed in quite a few cases, we've disagreed in a bunch, But you know, let's see."When asked modern political discourse, Sotomayor said too large of an emphasis has been put on differences rather than common "human values.""We all have families we love, we all care about others, we care about our country, and we care when people are injured," she told Axelrod. "And unfortunately, the current conversation often forgets that. It forgets our commonalities and focuses on superficial differences whether those are language or how people look or the same God they pray to but in different ways."Those differences truly are not important," she added. "What is important is those human values we share and those human feelings that we share. But I worry that we forget about that too often."
Wednesday, October 31, 2018
Evan Thomas, First: Sandra Day O'Connor (forthcoming 2019)
The intimate, inspiring, and authoritative biography of Sandra Day O’Connor, America’s first female Supreme Court justice, drawing on exclusive interviews and first-time access to Justice O’Connor’s archives—by the New York Times bestselling author Evan Thomas.
“She’s a hero for our time, and this is the biography for our time.”—Walter Isaacson
She was born in 1930 in El Paso and grew up on a cattle ranch in Arizona. At a time when women were expected to be homemakers, she set her sights on Stanford University. When she graduated near the top of her law school class in 1952, no firm would even interview her. But Sandra Day O’Connor’s story is that of a woman who repeatedly shattered glass ceilings—doing so with a blend of grace, wisdom, humor, understatement, and cowgirl toughness.
She became the first ever female majority leader of a state senate. As a judge on the Arizona State Court of Appeals, she stood up to corrupt lawyers and humanized the law. When she arrived at the United States Supreme Court, appointed by President Ronald Reagan in 1981, she began a quarter-century tenure on the Court, hearing cases that ultimately shaped American law. Diagnosed with cancer at fifty-eight, and caring for a husband with Alzheimer’s, O’Connor endured every difficulty with grit and poise.
Women and men who want to be leaders and be first in their own lives—who want to learn when to walk away and when to stand their ground—will be inspired by O’Connor’s example. This is a remarkably vivid and personal portrait of a woman who loved her family, who believed in serving her country, and who, when she became the most powerful woman in America, built a bridge forward for all women.
Wednesday, October 24, 2018
Now, perhaps fitting of the pioneering tendency she has shown all around, the 88-year-old retired justice revealed on Tuesday that she is in "the beginning stages of dementia, probably Alzheimer's disease."In the letter written from Phoenix, as she explained that she was no longer participating in public life, she again surmounted the stigma that sometimes comes with illness."While the final chapter of my life with dementia may be trying, nothing has diminished my gratitude and deep appreciation for the countless blessings in my life," she wrote in the letter released by the Supreme Court.O'Connor, who became an influential author of decisions on abortion rights, racial affirmative action, criminal procedures, and an array of social dilemmas during her quarter century tenure, also has had a deep personal imprint on American life.
Wednesday, October 17, 2018
On the website Etsy, which sells crafts and vintage items, typing “Ruth Bader Ginsburg” into the search bar yields more than 1,000 results.
You can buy a birthday card with the associate justice’s image and the phrase “small and mighty” written in pink. There’s also a tank top bearing her stern visage and “I dissent” written underneath. There are posters of her as Rosie the Riveter, peg dolls of her in full judicial regalia and even prayer candles portraying her as “the Patron Saint of the Supreme Court.”
If Etsy isn’t your thing, you can find a Ginsburg action figure on Kickstarter, complete with gavel, pointing finger and her “iconic jabot,” a frilly, fancy-looking collar perfect for making “fashion and judicial statements.” The initial funding goal was $15,000. As of September, it had raised well over $600,000. “She is a rock star. She is an inspiration. She is constantly fighting. She is brilliant and fearless,” the introductory video to the Kickstarter page states. “She is an icon.”
The items aren’t all kitschy. There are plenty of posters, coffee mugs and shirts featuring inspirational and even strident quotes from her speeches and opinions. One oft-used line came from an interview she gave shortly after Sonia Sotomayor was nominated to the Supreme Court in 2009: “Women belong in all places where decisions are being made.” Another popular one for product designers is: “Fight for the things you care about.”
That latter quote was from a 2015 luncheon at the Radcliffe Institute for Advanced Study at Harvard University in Justice Ginsburg’s honor. Oftentimes, these products will leave off the last part of Ginsburg’s sentence, which was “but do it in a way that will lead others to join you.” That outlook may explain why Ginsburg has become a cottage industry, generating countless products—none of which she has likely endorsed but has often been a good sport about.
And that’s just the tip of the iceberg. There is a music album inspired by her life story. There are websites and memes that celebrate her jurisprudence, her fiery dissents and her dedication to civil rights, gender equality and social justice. There’s even a recent documentary and an upcoming Hollywood film chronicling her long and storied career as a litigator fighting on behalf of gender equality.
Wednesday, October 3, 2018
New biography of Justice Ginsburg, out October 16, Jane Sharron de Hart, Ruth Bader Ginsburg: A Life
The first full life—private, public, legal, philosophical—of the 107th Supreme Court Justice, one of the most profound and profoundly transformative legal minds of our time; a book fifteen years in work, written with the cooperation of Ruth Bader Ginsburg herself and based on many interviews with the justice, her husband, her children, her friends, and her associates.
In this large, comprehensive, revelatory biography, Jane De Hart explores the central experiences that crucially shaped Ginsburg’s passion for justice, her advocacy for gender equality, her meticulous jurisprudence: her desire to make We the People more united and our union more perfect. At the heart of her story and abiding beliefs—her Jewish background. Tikkun olam, the Hebrew injunction to “repair the world,” with its profound meaning for a young girl who grew up during the Holocaust and World War II. We see the influence of her mother, Celia Amster Bader, whose intellect inspired her daughter’s feminism, insisting that Ruth become independent, as she witnessed her mother coping with terminal cervical cancer (Celia died the day before Ruth, at seventeen, graduated from high school).
From Ruth’s days as a baton twirler at Brooklyn’s James Madison High School, to Cornell University, Harvard and Columbia Law Schools (first in her class), to being a law professor at Rutgers University (one of the few women in the field and fighting pay discrimination), hiding her second pregnancy so as not to risk losing her job; founding the Women's Rights Law Reporter, writing the brief for the first case that persuaded the Supreme Court to strike down a sex-discriminatory state law, then at Columbia (the law school’s first tenured female professor); becoming the director of the women’s rights project of the ACLU, persuading the Supreme Court in a series of decisions to ban laws that denied women full citizenship status with men.
Her years on the U.S. Court of Appeals for the District of Columbia Circuit, deciding cases the way she played golf, as she, left-handed, played with right-handed clubs—aiming left, swinging right, hitting down the middle. Her years on the Supreme Court . . .
A pioneering life and legal career whose profound mark on American jurisprudence, on American society, on our American character and spirit, will reverberate deep into the twenty-first century and beyond.
Jill Lepore, Ruth Bader Ginsburg's Unlikely Path to the Supreme Court, New Yorker
God bless Ruth Bader Ginsburg, goats, bobbleheads, and all. But trivialization—R.B.G.’s workout tips! her favorite lace collars!—is not tribute. Female heroes are in short supply not because women aren’t brave but because female bravery is demeaned, no kind more than intellectual courage. Isn’t she cute? Ginsburg was and remains a scholar, an advocate, and a judge of formidable sophistication, complexity, and, not least, contradiction and limitation. It is no kindness to flatten her into a paper doll and sell her as partisan merch.
Doing so also obscures a certain irony. Ginsburg often waxes nostalgic about her confirmation hearings, as she did this September, when, regretting the partisan furor over Brett Kavanaugh—even before Christine Blasey Ford came forward—she said, “The way it was was right; the way it is is wrong.” The second of those statements is undeniably and painfully true, but the first flattens the past. What Biden was getting at, in 1993, was what the President himself had said, dismissing the idea of nominating Ginsburg when it was first suggested to him. “The women,” Clinton said, “are against her.” ***
And so when Clinton, eager to please, entertained names proposed by women’s groups, he learned that some of them refused to support Ginsburg, because they were worried that she might be willing to overturn Roe (which is not what she had written, but one gathers that the Madison Lecture was more often invoked than read). At one point, Clinton asked Senator Daniel Patrick Moynihan to suggest a woman. “Ruth Bader Ginsburg,” Moynihan answered. “The women are against her” was the President’s reply. Moynihan called Martin Ginsburg and said, “You best take care of it.
Thursday, September 27, 2018
Meg Penrose, The Way-Pavers: Eleven Supreme Court-worthy Women, Harvard J. Law & Gender (online) (July 2018)
Four women have served as associate justices on the United States Supreme Court. Since the Court’s inception in 1789, more than 160 individuals have been nominated to serve as Supreme Court justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court justices than women. Thirteen U.S. presidents have each nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently as many Catholics serving on the Supreme Court as the number of women confirmed in the Court’s entire history.
Women, once thought of as “one-at-a-time-curiosities” on the bench, now constitute nearly one-third of all state and federal judges. They occupy the highest posts on state supreme courts and can be found, in similar numbers, at the trial and appellate levels. If we limit our consideration to the current Supreme Court, women held one-third of the seats on our Supreme Court at the time of Justice Kennedy’s 2018 retirement. Yet, this number is deceptive since women on the highest court is a modern phenomenon.
Qualified women have been available for selection for many years—long before Justice Sandra Day O’Connor became the first woman on the Supreme Court, or FWOTSC, as she refers to herself. It was not until a 1980 campaign promise by then-Governor Ronald Reagan to appoint the first female justice to the Supreme Court that a woman broke one of our government’s last gender barriers. Presidents prior to that time were complicit in allowing male members of the Court, among other influences, to stave off appointments of well-qualified women. So, women waited. But now, women account for four of the last thirteen Supreme Court appointments and five of the past seventeen nominees. Clearly, the numbers are increasing.
This Essay presents the second scholarly ranking of female jurists deserving of a seat on the highest court in the land. The list celebrates eleven judicial way pavers: Ruth Bader Ginsburg, Sandra Day O’Connor, Sonia Sotomayor, Elena Kagan, Florence Allen, Constance Baker Motley, Shirley Huftstedler, Patricia Wald, Cornelia Kennedy, Harriet Miers and, Belva Lockwood. Each of these women is, or was, Supreme Court-worthy. Yet only four of them actually occupy or have occupied a place on the Court.
Monday, September 10, 2018
Justices Ginsburg, Sonia Sotomayor, Elena Kagan and their male colleagues saw fewer women arguing before them in the 2017-18 term, and the fewest to participate in oral argument in at least seven years.
During the recently completed term, there were 19 appearances at oral argument by women, or about 12 percent of the total 163 appearances, according to statistics kept by Kedar Bhatia for SCOTUSblog. (There were 113 different advocates who argued for parties or amici in the 63 argued cases, with several lawyers appearing more than once.)
The 12 percent figure was a steep drop from the previous term (2016-17), when 21 percent of appearances at oral argument were by women. In the previous five years to that term, the participation rate for women ranged from a low of 15 percent to a high of 19 percent.
“The thing that’s most disturbing to me is the consistency in the data,” says Jennifer Crystal Mika, an adjunct professor at American University’s Washington College of Law in the nation’s capital, who has studied the issue of female advocates before the high court. “There has never been much more than 20 percent female advocates over the last 20 years.”