Wednesday, November 9, 2016

At the Supreme Court on November 9

It was a gray day in post-election Washington, D.C., when the eight justices of the U.S. Supreme Court convened for their first oral argument of the new Presidential era.  Fittingly, perhaps, the question in Lynch v. Morales-Santana was whether the equal protection clause bars sex-based discrimination in US citizenship laws.  In case the justices missed it, the able attorney for the respondent, Stephen Broome, took a moment to point out that the decision on whether sex discrimination was permitted would have implications for the treatment of race-based classifications as well.

Right out of the box, the majority of the justices seemed ready to find that the discriminatory law violated the equal protection clause.  The government, with Edwin Kneedler arguing, suggested that Congress had benign purposes for the distinctions, but most of the justices seemed unimpressed.  Indeed, the discrimination is stark on the face of the law, which treats citizen mothers and citizen fathers differently for purposes of sharing derivative citizenship with a child, requiring that fathers prove more substantial ties to the US than mothers. However, the justices also had many questions for both the government and the respondent about the remedy.  Should the Court "remedy up" and impose more onerous requirements on mothers, or "remedy down" and allow fathers to take advantage of the less onerous mothers' standards?  How many people are we talking about anyway -- hundreds of thousands, or many fewer?  Could the Court punt,  point out the problem, and give the Congress time to determine the remedy itself?  These are tough questions, but as attorney Broome asserted repeatedly, the Court's solution needs to provide a remedy for Morales-Santana himself, a point that weighs on the side of a "remedy down" approach.

The equal protection claim at the core of this case is a classic Justice Ginsburg-type claim, and the Justice was an active contributor throughout the argument.  For example, when the discussion turned to congressional purpose, Justice Ginsburg reminded the other justices that when the offending citizenship statute was enacted in 1952, sex-based discrimination was generally both intentional and unremarkable.

When the argument concluded and the gavel came down, seven of the justices quickly left the bench and disappeared behind the courtroom's back curtain.  Only Justice Ginsburg lingered, gathering her papers and then moving slowly out of sight, a small, fragile figure, a feminist putting one foot in front of the other on the day after Donald Trump was elected president.

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